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HomeMy WebLinkAbout112184 ` ORDINANCE N0. 11,218 AN ORDINANCE AUTHORIZING THE ISSUANCE OF INDUSTRIAL DEVELOPMENT REVENUE BONDS UNDER THE PROVISIONS OF ACT NO. 9 OF THE FIRST EXTRAORDINARY SESSION OF THE SIXTY - SECOND GENERAL ASSEMBLY OF THE STATE OF ARKAN- SAS, APPROVED JANUARY 21, 1960, AS AMENDED BY ACT NO. 48 OF THE ACTS OF ARKANSAS OF 19613, FOR THE PURPOSE OF PROVIDING THE PERMANENT FINANCING OF THE COST OF SECURING AND DEVELOPING INDUSTRY NEAR THE CITY OF LITTLE ROCK, ARKANSAS (THE PARTICULAR IN- DUSTRIAL PROJECT CONSISTING OF LANDS AND THE CON- STRUCTION OF A MANUFACTURING BUILDING, IMPROVEMENTS AND FACILITIES THEREON DESCRIBED IN DETAIL IN THE ORDINANCE), AND COSTS AND EXPENSES INCIDENTAL THERE- TO AND TO THE ISSUANCE. OF BONDS (CALLED THE "PROJECT "); AUTHORIZING THE ACQUISITION AND CONSTRUCTION OF THE PROJECT; AUTHORIZING THE EXECUTION AND DELIVERY OF A TRUST INDENTURE SECURING SAID BONDS; PRESCRIBING OTHER MATTERS RELATING THERETO; AND DECLARING AN EMERGENCY. WHEREAS the City of Little Rock, Arkansas ('hereinafter sometimes referred to as the 1 °City ") is a duly existing municipality, a city of the first class, is authorized by Act No. 9 of the First Extraordinary Session of the 62nd General Assembly of the State of Arkansas, approved January 21, 1960, as amended by Act No. 48 of the Acts of the General Assembly of the State of Arkansas for the year 1961 (hereinafter sometimes referred to as "Act No. 911) to acquire lands and to construct manufacturing buildings, improvements and facilities thereon and to incur other costs and expenses in- cidental to and for the implementing and accomplishing of the conduct of manufacturing operations and to lease the lands, build- ings, improvements and facilities for the purpose of securing and developing industry all of which is in the public interest and for a public purpose in that there are thereby furnished employment opportunities for inhabitants of the City and of Pulaski County, Arkansas which will add to the welfare and prosperity of the City and of such inhabitants; and i OHO - :? 2 r- If � 1 s WHEREAS the City is authorized by Act No. 9 to issue Industrial Development Revenue Bonds payable from lease rentals and secured by a mortgage on the lands, buildings, improvements and facilities so leased; and WHEREAS the City has made the necessary arrangements with Jacuzzi Bros., Inc., a California corporation, but authorized to do business in the State of Arkansas (hereinafter sometimes referred to as "Jacuzzi ") for the City to acquire lands situated in Pulaski County, Arkansas near the City and to construct thereon a manu- facturing building, improvements and facilities (hereafter some- times referred to as the "Project ") and to lease the same to Jacuzzi, pursuant to which the City as Lessor and Jacuzzi as Lessee will enter into a Lease and Agreement dated as of the first day of August, 1961 which Lease and Agreement has been or prior to the execution, delivery and recording of the Trust Indenture authorized by this ordinance will be duly recorded in the office of the Circuit Clerk and Ex officio Recorder of Pulaski County, Arkansas and an executed copy will be on file in the office of the City Clerk of the City and with the Trustee, and will be herein sometimes referred to as the "Jacuzzi Lease Agreement ", and refer- ence may be made by any interested party to the Jacuzzi Lease Agreement for the rental, terms, conditions and obligations of the respective parties therein set forth; and WHEREAS as required by Act No. 9 the City submitted to its electors at a special election called for the purpose the question of the City issuing not to exceed $1,400,000 in principal amount of Industrial Development Revenue Bonds under Act No. 9 and at said special election, held on the 22nd day of August, 1961 the electors of the City approved the issuance of said bonds in an amount not to exceed $1,400,000 for the purpose of furnishing the r financing of the cost of the Project, necessary incidental expenses and fees, the expenses of issuing the bonds and the providing of debt service on the bonds until rental income under the Jacuzzi Lease Agreement is available in a sufficient amount to provide for the payment of the principal of,interest on and paying agent's fees in connection with the bonds as the same become due and payable; and WHEREAS the City has made the necessary arrangements for the sale to T. J. Raney & Sons and Associates, Little Rock, Arkan- sas, of Industrial Development Revenue Bonds in the principal amount of One Million Four Hundred Thousand Dollars ($1,400,000) to be dated August 1, 1961 with interest thereon payable semi- annually on June 1 and December 1 of each year commencing December 19 1961 and with the bonds to bear interest at the rates of 5 1/47. and 5 3/8`x per annum and to mature annually on December 1 in each of the years 1962 to 1981, inclusive, all as hereinafter set forth in detail; NOW, THEREFORE, BE IT ORDAINED by the Board of Directors of the City of Little Rock, Arkansas: Section 1. That there be, and there is hereby, authorized and directed the following: (a) The acquisition of title to the lands described in the Trust Indenture hereafter in this ordinance authorized; and (b) The execution of necessary architectural and engineering and construction contracts for the construction on said lands of manufacturing buildings, improvements and facilities in accordance with the applicable provisions of the Jacuzzi Lease Agreement pertaining to the construction of the Project, and there- after the construction of the Project in accordance with said applicable provisions of the Jacuzzi Lease Agreement. . • . •• l Section 2. That to provide for the authorization of and to secure Industrial Development Revenue Bonds of the City under Act No. 9 in the aggregate principal amount of $1,400,000 (herein sometimes referred to as the "Bondst1) to furnish the permanent financing of the cost of the Project, pay proper and necessary expenses and costs incidental thereto and to the issuance of bonds, and to providing of debt service on the bonds until lease rentals under the Jacuzzi Lease Agreement are available, and to prescribe the terms and conditions upon which the bonds are to be secured, executed, authenticated, accepted and held, the Mayor is hereby authorized and directed to execute and acknowledge a Trust Indenture, and the City Clerk is hereby authorized and directed to execute the Trust Indenture and to affix the seal of the City thereto and to attest the same, and the Mayor and City Clerk are hereby authorized and directed to cause said Trust Indenture to be accepted, executed and acknowledged by the Trustee, Union National Bank of Little Rock, Little Rock, Arkansas, with the Trust Indenture, which constitutes and is hereby made a part of this ordinance, to be in substantially the following form, to -wit: TRUST INDENTURE THIS INDENTURE executed as of the first day of August, 1961 by and between the CITY OF LITTLE ROCK, ARKANSAS, a city of the first class duly existing under the laws of the State of Arkansas (hereinafter sometimes referred to as the "City ") as party of the first part and UNION NATIONAL BANK OF LITTLE ROCK, a national banking institution organized under and existing by virtue of the laws of the United States of America, with its principal office, domicile and post office address in Little Rock, Pulaski County, Arkansas (hereinafter sometimes referred to as the "Trustee ") as party of the second part, W I T N E S S E T H: WHEREAS the City is a duly existing municipality, a city of the first class, with full and lawful power and authority to execute and deliver this Trust Indenture, in the public interest and for a public purpose, in connection with the providing for the securing and developing of industry near the City and thereby furnishing employment opportunities for the inhabitants of the City and of Pulaski County, Arkansas which will add to the welfare and prosperity of the City and of such inhabitants, all as authorized by and pursuant to the provisions of Act No. 9 of the First Extraordinary Session of the Sixty - Second General Assembly of the State of Arkansas, approved January 21, 1960, as amended by Act No. 48 of the Acts of the General Assembly of the State of Arkansas for the year 1961 (herein sometimes called t°Act No. 919); and WHEREAS the City is authorized by Act No. 9 to acquire land and to acquire and to construct manufacturing buildings, improvements and facilities and incur other costs and expenses necessarily incidental thereto and to the financing of the same for the implementing and accomplishing of the conduct of manufactur- & * a 01 4. ' Page 2 ing operations and to lease the lands, buildings and facilities so acquired and constructed for the purpose of securing and develop- ing industry; and WHEREAS the City is authorized by Act No. 9 to issue Industrial Development Revenue Bonds payable from lease rentals and secured by a mortgage on the lands, buildings, improvements and facilities so leased; and WHEREAS the City has made the necessary arrangements with Jacuzzi Bros., Inc., a California corporation, but authorized to do business in the State of Arkansas (hereinafter sometimes referred to as "Jacuzzi11) for the City to acquire lands situated in Pulaski County, Arkansas near the City and to construct thereon a manu- facturing building, improvements and facilities (hereafter some- times referred to as the "Project ") and to lease the same to Jacuzzi, pursuant to which the City as Lessor and Jacuzzi as Lessee will enter into a Lease and Agreement dated as of the first day of August, 1961 which Lease and Agreement has been or prior to the execution, delivery and recording of this Trust Indenture will be duly recorded in the office of the Circuit Clerk and Ex officio Recorder of Pulaski County, Arkansas and an executed copy will be on file in the office of the City Clerk of the City and with the Trustee, and will be herein sometimes referred to as the "Jacuzzi Lease Agreement ", and reference may be made by any interested party to the Jacuzzi Lease Agreement for the rental, terms, conditions and obligations of the respective parties therein set forth; Aud WHEREAS as required by Act No. 9 the City submitted to its electors at a special election called for the purpose the question of the City issuing not to exceed $1,400,000 in principal amount of Industrial Development Revenue Bonds under Act No. 9 and at said special election, held on the 22nd day of August, 1961 Page 3 the electors of the City approved the issuance of said bonds in an amount not to exceed $1,400,000 for the purpose of furnishing the financing of the cost of the Project, necessary incidental expenses and fees, the expenses of issuing the bonds and the providing of debt service on the bonds until rental income under the Jacuzzi Lease Agreement is available in a sufficient amount to provide for the payment of the principal of, interest on and paying agent's fees in connection with the bonds as the same become due and payable; and WHEREAS the City has made the necessary arrangements for the sale of Industrial Development Revenue Bonds in the principal amount of Oae-Million Four Hundred Thousand Dollars ($1,400,000) to be dated August 1, 1961 with interest thereon payable semi- annually on June 1 and December 1 of each year commencing December 19 1961 and with the bonds to bear interest at the rates of 5 1/47. and 5 3/87* per annum and to mature annually on December 1 in each of the years 1962 to 1981, inclusive, all as hereinafter set forth in detail; and WHEREAS the execution and delivery of this Trust Indenture (hereinafter sometimes referred to as the "Trust Indenture" or the "Indenture ") and the issuance of said Industrial Development Revenue Bonds under Act No. 9 have in all respects duly and validly been authorized by ordinances of the Board of Directors of the City, including particularly Ordinance No. , duly passed and approved on the day of September. 1961; and WHEREAS the bonds, interest coupons to be attached there- to, and the Trustee's Certificate to be endorsed thereon are all to be in substantially the following form with necessary and appropriate variations, omissions and insertions as permitted or required by this Trust Indenture, to -wit: (Form of Bond) UNITED STATES OF AMERICA STATE OF ARKANSAS COUNTY OF PULASKI CITY OF LITTLE ROCK _% INDUSTRIAL DEVELOPMENT REVENUE BOND No. KNOW ALL MEN BY THESE PRESENTS: $19000 That the City of Little Rock, Pulaski County, Arkansas, a city of the first class under the laws of the State of Arkansas, (hereinafter called the "City ") for value received, promises to pay to bearer, or if this bond be registered, to the registered ownere hereof, on December 1, 19 ____, the principal sum of ONE THOUSAND DOLLARS in such coin or currency as at the time of payment is legal tender for the payment of debts due the United States of America, and to pay in like coin or currency interest on said principal amount from the date hereof until paid at the rate of per cent ( _,_ %) per annum, such interest to be payable semi - annually on June 1 and December 1 of each year commencing December 1, 1961 upon presentation and surrender of the annexed oupons as they severally become due. The principal of this bond and the interest hereon are payable at the office of Union National Bank of Little Rock, Little Rock, Arkansas (the "Trustee" and the "Paying Agent "). This bond is one of a series of one thousand four hundred (1400) bonds aggregating One Million Four H mdred Thousand Dollars ($104009000), known as "City of Little Rock, Arkansas Industrial Development Revenue Bonds ", dated August 1, 1961, numbered con- secutively from 1 to 1400, inclusive, all of like tenor and effect as to number, rate of interest, maturity and right of prior re- demption, issued for the purpose of financing the cost of lands, � t 1 r. t 4t • buildings, improvements and facilities for the conducting of substantial manufacturing operations near the City, paying necessary expenses incidental thereto, the expenses of issuing the bonds and debt service until income is available for the payment of the principal of and interest on the bonds (herein called the "Project "I The bonds are all issued under and are all equally and ratably secured and entitled to the protection given by a Trust Indenture (herein called "Indenture "), dated as of August 1, 1961, duly executed and delivered by the City to Union National Bank of Little Rock, Little Rock, Arkansas, Trustee, which Indenture is recorded in the office of the Circuit Clerk and Ex officio Record- er of Pulaski County, Arkansas, and reference is hereby made to the Indenture and to all indentures supplemental thereto for the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the City, the Trustee and the holders and registered owners of the bonds and the terms upon which the bonds are issued and secured. This bond and the series of which it forms a part are issued pursuant to and in full compliance with the Constitution and laws of the State of Arkansas, particularly Act No. 9 of the First Extraordinary Session of the Sixty- Second General Assembly of the State of Arkansas, approved January 21, 1960, as amended by Act No. 48 of the Acts of the General Assembly of the State of Arkansas for the year 1961 (herein called "Act No. 9 ") and pur- suant to Ordinance No. of the Board of Directors of the City passed and approved on the da y of Oct °be 6sgl�s�r, 1961, which ordinance authorizes the execution and delivery of the In- denture. This bond and the series of which it forms a part are not general obligations of the City, but are special obligations payable solely from revenues and lease rentals derived from the Project. In this regard, the Project has been leased to Jacuzzi Bros., Inc., a California corporation, but authorized to do business in the State of Arkansas, for a rental at least sufficient to pay the principal of, interest on, redemption premiums, if any, and paying agent's fees in connection with the bonds, as the same be- come due and payable. Rental payments sufficient for said purposes are to be paid to the Trustee and deposited in a special account of the City designated 1°1961 Industrial Development Revenue Bond Retirement Fund- Jacuzzi Project ". The rental payments and revenues derived from the Project have been duly pledged by the Indenture to the payment of the principal of, interest on, redemption prem- iums if any, and paying agent's fees in connection with the bonds. In addition, the bonds are secured by a mortgage on the Project. The bonds do not constitute an indebtedness of the City within any constitutional or statutory limitation. The holder of this bond shall have no right to enforce the provisions of this Indenture or to institute action to enforce the covenants therein, or to take any action with respect to any event of default under the Indenture, or to institute, appear in and defend any suit or other proceeding with respect thereto, except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect set forth in the Indenture, the principal of all of the bonds issued under the Indenture and then outstanding may become or may be declared due and payable before the stated maturity thereof, together with accrued interest thereon. Modifications or alterations of the Indenture, or of any indenture supplemental thereto, may be made only to the extent and in the circumstances permitted by the Indenture. The bonds shall be non - callable prior to December 1, 1966 except (1) from proceeds received from condemnation (as set forth in the Jacuzzi Lease Agreement described in the Indenture) and (2) from the amounts received pursuant to the exercise by the Less - ee under the Jacuzzi Lease Agreement of its options to purchase (as set forth in Section .1902 of the Jacuzzi Lease Agreement), and if funds from said sources are received during said period, the bonds shall be called, in whole or in part to the extent of the funds so received, on any interest paying date in inverse numerical order at the principal amount of the bonds being called plus accrued interest to the redemption date and plus a premium of 5 3/8% of the principal amount. On and after December 1, 1966, the bonds shall be callable for payment prior to maturity from funds from any source (including without limitation the sources described above from which a call may be made prior to December 1, 1966, it berg mandatory to call bonds to the extent of funds from said sources), in whole or in part, in inverse numerical order on any interest paying date at the principal amount of the bonds being called plus accrued interest to the redemption date and plus a premium of such principal amount as follows: 5 3/876 if redeemed r 1, The bonds shall be non - callable prior to December 1, 1966 except (1) from proceeds received from condemnation (as set forth in the Jacuzzi Lease Agreement described in the Indenture) and (2) from the amounts received pursuant to the exercise by the Less - ee under the Jacuzzi Lease Agreement of its options to purchase (as set forth in Section .1902 of the Jacuzzi Lease Agreement), and if funds from said sources are received during said period, the bonds shall be called, in whole or in part to the extent of the funds so received, on any interest paying date in inverse numerical order at the principal amount of the bonds being called plus accrued interest to the redemption date and plus a premium of 5 3/8% of the principal amount. On and after December 1, 1966, the bonds shall be callable for payment prior to maturity from funds from any source (including without limitation the sources described above from which a call may be made prior to December 1, 1966, it berg mandatory to call bonds to the extent of funds from said sources), in whole or in part, in inverse numerical order on any interest paying date at the principal amount of the bonds being called plus accrued interest to the redemption date and plus a premium of such principal amount as follows: 5 3/876 if redeemed December 1, 1966 to June 1, 1967, inclusive; 4 7/8% if redeemed December 1, 1967 to June 1, 1968, inclusive; 4 3/8% if redeemed December 1, 1968 to June 1, 1969, inclusive; 3 7/8% if redeemed December 1, 1969 to June 1, 1970, inclusive; 3 3/876 if redeemed December 1, 1970 to June 1, 1971s inclusive; 2 7/876 if redeemed December 1, 1971 to June 1, 1972, inclusive; 2 3/876 if redeemed December 1, 1972 to June 1, 19730 inclusive; 1 7/8% if redeemed December 1, 1973 to June 1, 1974, inclusive; 1 3/876 if redeemed December 1, 1974 to June 1, 1975s inclusive; 7/8 of 176 if redeemed December 1, 1975 to June 11, 1976s inclusive; 3/8 of 176 if redeemed December 1, 1976 to June 19 1977s inclusive; and no premium if redeemed thereafter. Notice of the call for redemption shall be published one time in a newspaper published in the City of Little Rock, Arkansas and having a general circulation throughout the State of Arkansas, with the publication to be not more than sixty (60) and not less than thirty (30) days before the date of redemption. In addition, notice of redemption shall be mailed by registered or certified mail to the registered owner of any bond registered as to principal addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) days prior to the date fixed for redemption. In the event that all of the bonds are registered as to principal, notice in writing by registered or certified mail to the owner or owners thereof not less than .thirty (30) days prior to the date fixed for redemption shall be sufficient and published notice of the call for redemption need not be given. Each notice shall specify the numbers and maturities of the bonds being called and the date on which they shall be presented for payment. After the date specified in said call, the bond or bonds so called will cease to bear interest, provided funds for their payment are on deposit with the paying agent at that time, and, except for the purpose of payment, shall no longer be protected by the Indenture and shall not be deemed to be outstanding under the provisions of the Indenture. This bond may be registered as to principal alone and may be discharged from such registration, in the manner, with the effect and subject to the terms and conditions endorsed hereon and set forth in the Indenture. Subject to the provisions for registration endorsed hereon and contained in the Indenture, nothing contained in this bond or in the Indenture shall affect or impair the nego- tiability of the bond. As declared in Act No. 9, this bond shall be deemed to be a' negotiable instrument under the laws of the State of Arkansas and this bond is issued with the intent that the laws of the State of Arkansas will govern its construction. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required to exist, happen and be per- formed precedent to and in the issuance of this bond do exist, have happened and have been performed in due time, form and manner as required by law; that the indebtedness represented bythis bond and the series of which it forms a part, together with all obligations of the City, does not exceed any constitutional or statutory limi- tation; and that the above referred to revenues pledged to the pay- ment of the principal of and interest on this bond and the series of which it forms a part, as the same become due and payable, will be sufficient in amount for that purpose. This bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Indenture until the Certificate of Authentication hereon shall have been signed by the Trustee. IN WITNESS WHEREOF, the City of Little Rock, Arkansas has caused this bond to be executed in its name by its Mayor and City Clerk, thereunto duly authorized, and its corporate seal to be affixed and has caused the interest coupons hereto attached to be executed by the facsimile signature of its Mayor, all as of the first day of August, 1961. CITY OF LITTLE ROCK, ARKANSAS By Mayor ATTEST: City Clerk (SEAL) a (Form of Trustee's Certificate) TRUSTEE'S CERTIFICATE OF AUTHENTICATION This bond is one of the bonds of the series designated therein and issued under the provisions of the within mentioned Indenture. UNION NATIONAL BANK OF LITTLE ROCK LITTLE ROCK, ARKANSAS By Authorized Signature Little Rock, Arkansas No. 1961 (Form of Interest Coupon) June On the first day of December,19 the City of Little Rock, Afkawas' (unless the bond to which this coupon is attached shall have been previously called for redemption or shall have become payable as provided in the Indenture referred to in said bonds) will pay, solely from the revenues pledged in said Indenture, to bearer at Union National Bank of Little Rock, Little Rock, Arkansas, upon presentation and surrender hereof, the sum of DOLLARS in such coin or currency as at the time of payment is legal tender for the payment of debts due the United States of America, being six (6) months' interest then due on its Industrial Development Revenue Bond, dated August 1, 1961, and numbered CITY OF LITTLE ROCK, ARKANSAS By ` f 9 PROVISIONS FOR REGISTRATION AND RECONVERSION This bond may be registered as to principal alone on books of the City of Little Rock, Arkansas, kept by the Trustee under the within mentioned Indenture, as bond registrar, upon presentation hereof to the bond registrar, which shall make mention of such registration in the registration blank below, and this bond may thereafter be transferred only upon an assignment duly executed by the registered owner or his attorney or legal representative in such form as shall be satisfactory to the bond registrar, such transfer to be made on such books and endorsed thereon by the bond regis- trar. Such transfer may be to bearer and thereafter transferability by delivery shall be restored, but this bond shall again be subject to successive registrations and transfers as before, The principal of this bond, if registered, unless registered to bearer, shall be payable only to or upon the order of the registered owner or his legal representative. Notwithstanding the registration of this bond as to principal, the coupons shall remain payable to bearer and shall continue to be transferable by delivery. Payment to the bearer of the coupons shall fully discharge the City in respect to the interest therein mentioned whether or not this bond be registered as to principal and whether or not any such coupons be overdue. Date of Registration Name of Registered Owner Signature of Bond Registrar " 1 ' ` f 9 PROVISIONS FOR REGISTRATION AND RECONVERSION This bond may be registered as to principal alone on books of the City of Little Rock, Arkansas, kept by the Trustee under the within mentioned Indenture, as bond registrar, upon presentation hereof to the bond registrar, which shall make mention of such registration in the registration blank below, and this bond may thereafter be transferred only upon an assignment duly executed by the registered owner or his attorney or legal representative in such form as shall be satisfactory to the bond registrar, such transfer to be made on such books and endorsed thereon by the bond regis- trar. Such transfer may be to bearer and thereafter transferability by delivery shall be restored, but this bond shall again be subject to successive registrations and transfers as before, The principal of this bond, if registered, unless registered to bearer, shall be payable only to or upon the order of the registered owner or his legal representative. Notwithstanding the registration of this bond as to principal, the coupons shall remain payable to bearer and shall continue to be transferable by delivery. Payment to the bearer of the coupons shall fully discharge the City in respect to the interest therein mentioned whether or not this bond be registered as to principal and whether or not any such coupons be overdue. Date of Registration Name of Registered Owner Signature of Bond Registrar and WHEREAS all things necessary to make the said bonds, when authenticated by the Trustee and issued as in this Indenture pro- vided, the valid, binding and legal obligations of the City accord- ing to the import thereof, and to constitute this Indenture a valid lien on the properties mortgaged and a valid pledge of the revenues herein made to the payment of the principal of and in- terest on said bonds, have been done and performed, and the creation, execution and delivery of this Indenture and the creation, execution and issuance of said bonds, subject to the terms hereof, have in all respects been duly authorized; NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS INDENTURE WITNESSETH: That the City in consideration of the premises and the acceptance by the Trustee of the trusts hereby created and of the purchase and acceptance of the bonds by the holders and owners thereof, and of the sum of One Dollar ($1.00), lawf6: money of the United States of America, to it duly paid by the Trustee, at or before the execution and delivery of these presents, and for other good and valuable considerations, the receipt of which is hereby acknowledged, and in order to secure the payment of the principal of and interest on the bonds according to their tenor and effect and the performance and observance by the City of all the covenants expressed or implied herein and in the bonds, does hereby grant, bargain, sell, convey, mortgage, assign and pledge unto Union National Bank of Little Rock, Little Rock, Arkansas, Trustee, and unto its successor successors in trust, and to them and their assigns forever, for the securing of the performance of the obli- gations of the City hereinafter set forth: ORDINANCE # 11,218 coxitinued 1. The following described real estate and-premises situated in the County of Pulaski and State of Arkansas, with all building, additions and improvements now or hereafter located thereon or therein with the tenements, hereditaments, appurtenances, rights, privileges and immunities thereunto belonging or appertain- ing, and warrants the title to the same, to -wit: A part of the North Half of the Southeast Quarter A SEA) of Section 8, Township 1 South, Range 13 West, Pulaski County, Arkansas, more particularly described as follows: Beginning at the Southeast Corner of the Northeast Quarter (NEk) of the South- east Quarter ( SEA) of Section 8, Township l South, Range 13 West, thence North along the East line of said Section 8, 430.6 feet; thence South 82 degrees 50 minutes West 1258.3 feet to the point of beginning proper, said point being on the North right of way line of railroad; thence along the said right of way line South 82 degrees 50 minutes West 1217.9 feet to a point; thence North 2 degrees 45 minutes West 630 feet to a point on the South right of way line of Interstate Highway #30; thence in a North- easterly direction along the South right of way line of said Highway 1249.6 feet to a point; thence South 2 degrees 45 minutes East 794 feet to a point, said point being the point of beginning proper, con- taining 20 acres, more or less; and A tract of land in the East Half 04) of Section 8, Township 1 South, Range 13 West, Pulaski County, Arkansas more particularly described as: Starting at the Southeast Corner of Section 8, Township 1 South, Range 13 West, Pulaski County, Arkansas; thence North along the section line between Sections 8 and 9, 1799.3 feet to a point at the intersection of the north right of way line for the Missouri Pacific Railroad and said section line; thence South 80 degrees 54 minutes west along said north right of way line for the Missouri Pacific Railroad 30.0 feet to the point of beginning; thence continue south 80 degrees 54 minutes west along said right of way line 1228.3 feet to a point; thence north 4 degrees 44 minutes west 794.1 feet to a point on the south right of way line for U. S. Highway No. 67; thence northeasterly along a 3970,0 Beet radius curve to the left 996.5 feet to a point on the west right of way line for the new county road (to Vimy Ridge); thence south 39 degrees 05 minutes east along said west right of way line 497.5 feet to a point; thence continue southeasterly along a 352.0 foot radius curve to the right and along said west right of way line 240.0 feet to a point; thence continue south along said west right of way line 468.41 feet to the point of beginning, containing 26.470 acres more or less. oc0 -%�3 A-.a Also, the following described parcel of real property consisting of 4.62 acres, more or less, for the purpose of providing a sewage disposal lagoon, together with easements in connection therewith for the construction and maintenance cf a sewer line and for right of entry, said real property and easements being subject to a reverter in the event same shall no longer be used for these purposes, said real property and easements being more particularly described as follows: Part of the SWk of the NW'k, Section 9, Township 1 South, Range 13 West, more particularly des- cribed as follows: Commencing at the SW corner of the NWk, Section 9, Township 1 South, Range 13 West, and running thence north 870 55' east, a distance of 300 feet to the point of beginning of the parcel of land herein described; thence north 00 07' west, a dis- tance of 250.00 feet to a point; thence north 440 53' east, a distance of 141.42 feet to a point; thence north 870 55' east, a distance of 490.00 feet to a point; thence south 00 07' east, 350.00 feet to a point; thence south 870 55' west, a distance of 590.00 feet to the point of beginning, containing 4.62 acres, more or less, all in Pulaski County, Arkansas. Also, an easement for the construction and maintenance of a sewer line upon, through, or under the following described easement, said easement being 10 feet, lying 5 feet each side of the following described easement in the SEk of the NE'k. Section 8, and the SWk of the NWk, Section 9, Township 1 South, Range 13 West, Pulaski County, Arkansas, more particularly described as follows: Beginning at the SW corner of the NWk, Section 9, Township 1 South, Range 13 West; thence south 890 53' west, a distance of 188.81 feet to a point on the east right -o€ -way line of a County Road; thence north 390 13' east along the right -of -way line of said County Road, a distance of 39.33 feet to a point of beginning of the centerline of the easement described; thence north 520 14' east, a distance of 205 feet; thence north 870 55' east, a distance of approximately 360 feet. Also, an easement for right of entry upon or through the following described easement, said easement being 10 feet, lying 5 feet on each side of the following described centerline in the SE'k of the NEk. Section 8, and the SW'k of the NWk, Section 9, Township 1 South, Range 13 West, Pulaski County, Arkansas, more particularly described as follows: Beginning at the SW corner of the NWk, Section 9, Township 1 South, Range 13 West; thence north 00 07' west 514.15 feet to the south right -of -way line of U. S. Highway 67; thence south 47 33' west, a distance of 284.5 feet to a point; thence south 520 07' west, a distance of 2.5 feet to a point on the south right -of -way line of U. S. Highway 67 and the paint of beginning of the easement herein described; thence south 390 13' east, a distance of 255.0 feet to a point, thence north 870 55' east, a distance of approximately 360 feet. i a s 2• All revenue and income derived by the City from the mortgaged property (hereinafter defined), including without limita- tion all rentals received by the City from the leasing of the property, and in particular the rentals and profits received under and pursuant to the Jacuzzi Lease Agreement, pursuant to the terms of which basic rent is to be forwarded directly to the Trustee for the account of the City and deposited in the account of the City therein designated "1961 Industrial Development Bond Retire- ment Fund - Jacuzzi Project" (herein sometimes referred to as the 10Bond Fund "). 3. Any and all other property of every name and nature from time to time heretofore or hereafter by delivery or by writing of any kind conveyed, mortgaged, pledged, assigned or transferred, as and for additional security hereunder by the City or by any other person, firm or corporation, or with the consent of the City, to the Trustee, which is hereby authorized to receive any and all such property at any time and at all times and to hold and apply the same subject to the terms hereof. TO HAVE AND TO HOLD all the same with all privileges and appurtenances hereby conveyed and assigned, or agreed or in- tended so to be, to the Trustee and its successors in said trusts and to them and their assigns forever; IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal and proportionate benefit, security and protection of all holders and owners of the said bonds and interest coupons thereto attached issued under and secured by this Indenture without privilege, priority or distinction as to lien or otherwise of any of said bonds or coupons thereto attached over any of the others of said bonds; provided, however, that if the City, its successors or assigns, shall well and truly pay, or cause to be paid, the principal of the bonds and the interest due or to become due thereon, at the times and in the manner provided in the bonds and the interest coupons appertaining to the bonds, respectively, accord- ing to the true intent and meaning thereof, and shall make the pay- ments into the Bond Fund as required under Article V. or shall pro- vide, as permitted hereby, for the payment thereof by depositing or causing to be deposited with the Trustee the entire amount due or to become due thereon, and shall well and truly keep, perform and observe all the covenants and conditions pursuant to the terms of this Indenture to be kept, performed and observed by it, and shall pay to the Trustee all sums of money due or to become due to it in accordance with the terms and provisions hereof, then upon such final payments this Indenture and the rights hereby granted shall cease, determine and be void; otherwise, this Indenture to be and remain in full force and effect. THIS INDENTURE FURTHER WITNESSETH that, and it is ex- pressly declared, all bonds issued and secured hereunder are to be issued, authenticated and delivered and all said revenue and income hereby pledged are to be dealt with and disposed of under, upon and subject to the terms, conditions, stipulations, covenants, agree- ments, trusts, uses and purposes as hereinafter expressed, and the City has agreed and covenanted and does hereby agree and covenant, with the Trustee and with the respective holders and owners, from time to time, cf the said bonds or coupons or any part thereof, as follows, that is to say: ARTICLE I DEFINITIONS Section 101. In addition to the words and terms else- where defined in this Indenture, the following words and terms as used in this Indenture shall have the following meanings: "1961 Industrial Development Revenue Bond Retirement Fund- Jacuzzi Project" or "Bond Fund" - The fund of the City created by Section 502 of the Indenture into which the funds specified in Article V are to be deposited and out of which disbursements are to be made as expressly authorized and directed by the Indenture. "Bonds" - The City of Little Rock, Arkansas Industrial Development Revenue Bonds dated August 1, 1961 secured by the Indenture. "Coupon1° - The interest coupons attached to the bonds. 1 °City" - The City of Little Rock, Arkansas, a city of the first class under the laws of the State of Arkansas and situa- ted in Pulaski County, Arkansas. "Indenture" - This Trust Indenture together with all indentures supplemental hereto. "Outstanding hereunder" - "Bonds outstanding hereunder " - All bonds which have been authenticated and delivered under this Indenture except: (a) Bonds cancelled because of payment or redemption prior to maturity; and (b) Bonds for the payment or redemption of which cash shall have been heretofore deposited with the Trustee and paying agent (whether upon or prior to the maturity or redemption date of any of such bonds) provided that if such bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given or provision satisfactory to the Trustee and paying agent shall have been made therefor, or a waiver of such notice, 000 - --.3 i4 -17 satisfactory in form tote Trustee and paying agent, shall have been filed with the Trustee and paying agent. (c) Bonds in lieu of which others have been authenticated under Section 208. "Paying Agent" - The bank or trust company named by the City as the place at which the principal of and interest on the bonds shall be payable. The Paying Agent is always the same as the Trustee and the original Paying Agent and Trustee is Union National Bank of Little Rock, Little Rock, Arkansas. "Person" - Includes natural persons, firms, associations, corporations and public bodies. t9Project1P - The lands, building, improvements, facili- ties and expenses embodied in the industrial project being leased to Jacuzzi and being financed out of the proceeds of the bonds being issued by the City hereunder. "Trust Estate1° - "property herein conveyed" - The mortgaged property. "Trustee1° - The trustee for the time being, whether original or successor, with the original Trustee being Union National Bank of Little Rook, Little Rock, Arkansas. "Mortgaged property" - The properties comprising the Project, including the properties originally leased to Jacuzzi as well as all other properties which, under the terms of the Indenture, subsequently become subject to the lien of the Indenture but excluding all property owned by Jacuzzi and to which title, under the terms of the Indenture, remains in Jacuzzi. "Holder" or "bondholder" - "owner of the bondst1 - The bearer of any bond not registered as to principal and the regis- tered owner of any bond registered as to principal. "Jacuzzi" - A California corporation authorized to do business in Arkansas and Lessee under the Jacuzzi Lease Agreement. The term shall also include any assignee or successor of Jacuzzi in the event of an assignment, merger or consolidation pursuant to and as permitted by the provisions of the Jacuzzi Lease Agreement. "Jacuzzi Lease Agreement" - The Lease and Agreement described in Section 409 of the Indenture but which is the lease covering the leasing of the Project to Jacuzzi and which lease is of record in the office of the Circuit Clerk and Ex officio Recorder of Pulaski County, Arkansas and all supplements thereto, whenever executed, which supplements are, or will be, of record in the office of the Circuit Clerk and Ex officio Recorder of Pulaski County, Arkansas. "1961 Industrial Development Bond Construction Fund" or 1°Construction Fund" - The fund created by Section 601 into which the portion cE the proceeds of the sale of the bonds speci- fied in Section 601 are to be deposited and out of which disburse- ments are to be made in the manner and for the purposes specified in Article VI of the Indenture. Secti2a102. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, the words t°bond ". "coupon".. "owner'°, "holder" and "person" shall include the plural, as well as the singular, number. Section • ARTICLE II THE BONDS No bonds may be issued under the provisions of this Indenture except in accordance with this Article, and the total principal amount of bonds that may be issued is hereby ex- pressly limited to One Million Four Hundred Thousand Dollars 01,400,000), except with respect to substituted bonds issued under Section 208. Section 202. The bonds shall be designated "City of Little Rock, Arkansas Industrial Development Revenue Bonds ". They shall be dated August 1, 1961 and shall bear interest payable semi- annually on June 1 and December 1 of each year, commencing December 1, 1961. They shall be in the denomination of $1,000 each and shall be numbered consecutively from l to 1400, inclusive. They shall mature serially, unless sooner redeemed in the manner herein set forth, annually on December 1 in each of the years set forth in and in the amount set opposite each year and shall bear interest at the rates set forth in the following schedule: 0VV -;?3 4 -10 YEAR BOND NOS. INTEREST RATE AMOUNT 1962 1 - 41 5 1/4% $41,000 1963 42 - 84 5 1/4% 43,000 1%4 85 - 130 5 1/47. 46,000 1965 131 - 178 5 1 /4%. 489000 1966 179 - 228 5 1/47. 50,000 1967 229 - 281 5 1/47. 539000 1968 282 - 337 5 1/47. 569000 1969 338 - 396 5 1/47. 593,000 1970 397 - 458 5 1/47. 62,000 1971 459 - 523 5 1/4% 659000 1972 524 - 592 5 1/47. 69,000 1973 593 - 664 5 1/47. 72,000 1974 665 - 700 5 1/47. ( 369000 < 1974 701 - 740 5 3/8% ( 40,000 1975 741 - 820 5 3/87. 80,000 1976 821 - 904 5 3/8% 84,000 1977 905 - 993 5 3/8% 89,000 1978 994 - 1087 5 3/87. 94,000 1979 1088 - 1186 5 3/8% 999000 1980 1187 - 1290 5 3/8% 1042000 1981 1291 - 1400 5 3/8% 110;000 The interest on the bonds shall be evidenced by interest coupons. The principal of the bonds and the interest thereon shall be payable at the office of the Trustee and Paying Agent. Payment shall be in any coin or currency which on the respective dates of payment of such principal and interest is legal tender for the payment of debts due the United States of America. Section 203. The bonds shall be executed on behalf of the City by the Mayor and City Clerk thereof and shall have im- pressed thereon the seal of the City and in this regard the bonds may be executed by the facsimile signature of the Mayor but must be executed by the manual signature of the City Clerk. The coupons attached to the bonds shall be executed by the facsimile signature of the Mayor. The facsimile signature of the Mayor on the bonds and on the coupons shall have the same force and effect, as if the Mayor had personally signed each of said bonds and each of said coupons. The bonds, together with interest thereon, shall be payable from the Bond Fund as hereinafter set forth, and shall be a valid claim of the holders thereof only against such fund and the revenues pledged to such fund, which revenues are pledged to the equal and ratable payment of the bonds and shall be used for no other purpose than to pay the principal of and interest on the bonds, redemption premiums, if any, and the paying agent's fees, except as may be otherwise expressly authorized in this Indenture. In addition, the bonds are secured by a mortgage on the mortgaged property as provided in this Indenture. The bonds and interest thereon shall not constitute an indebtedness of the City within any constitutional or statutory provisions. In case any officer whose signature or facsimile of whose signature shall appear on the bonds or coupons shall cease to be such officer before the delivery of such bonds, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes, the same as if he had remained in office until delivery. Sect_i_on_204. Only such bonds as shall have endorsed thereon a Certificate of Authentication substantially in the form hereinabove set forth duly executed by the Trustee shall be entitled to any right or benefit under this Indenture. No bond and no cou- pon appertaining to any bond shall be valid or obligatory for any purpose unless and until such Certificate of Authentication shall have been duly executed by the Trustee, and such Certificate of the Trustee upon any such bond shall be conclusive evidence that such bond has been authenticated and delivered under this Indenture. The Trustee's Certificate of Authentication on any bond shall be deemed to have been executed if signed by an authorized officer of the Trustee, but it shall not be necessary that the same officer sign the Certificate of Authentication on all of the bonds issued hereunder. Before authenticating or delivering any bonds, the Trustee shall detach and cancel all matured coupons, if any, appertaining thereto, and such cancelled coupons shall be cre- mated by the Trustee. Section 205. The bonds issued under this Indenture and the coupons attached thereto shall be substantially in the form hereinabove set forth with such appropriate variations, omissions and insertions as are permitted or required by this Indenture. Section 206. Upon the execution and delivery of this Indenture the City shall execute and deliver the bonds to the Trustee and the Trustee shall authenticate the bonds and deliver them to the purchasers, T. J. Raney & Sons and Associates, upon payment of the purchase price plus accrued interest from the date of the bonds to the date of delivery. Section 2071. This Indenture is given in order to secure funds to pay for new construction and by reason thereof it is in- tended that this Indenture shall be superior to any laborers', mechanics' or mater_ialmen's liens which may be placed upon the Project. Section 208. In case any bond issued hereunder shall be- come mutilated or be destroyed or lost, the City shall, if not then prohibited by law, cause to be executed and the Trustee may authenticate and deliver a new bond of like date, number, maturity and tenor in exchange and substitution for and upon cancellation of such mutilated bond and its interest coupons, or in lieu of and in substitution for such bond and its coupons destroyed or lost, upon the holder's or owner's paying the reasonable expenses and charges of the City and the Trustee in connection therewith, and, in case of a bond destroyed or lost, his filing with the Trustee evidence satisfactory to it that such bond and coupons were destroyed or lost, and of his ownership thereof, and furnishing the City and Trustee with indemnity satisfactory to them. The Trustee is hereby authorized to authenticate any such new bond. Section 209. Title to any bond, unless such bond is registered in the manner hereinafter provided, and to any interest coupon shall pass by delivery in the same manner as a negotiable instrument payable to bearer. The City shall cause books for the registration and for the transfer of the bonds as provided in this Indenture to be kept by the Trustee as bond registrar. At the option of the bearer, any bond may be registered as to principal alone on such books, upon presentation thereof to the bond regis- trar, which shall make notation of such registration thereon. Any bond registered as to principal may thereafter be transferred only upon an assignment duly executed by the registered owner or his attorney or legal representative in such form as shall be satis- factory to the bond registrar, such transfer to be made on such books and endorsed on the bond by the bond registrar. Such trans- fer may be to bearer and thereafter transferability by delivery shall be restored, subject, however, to successive registrations and transfers as before. The principal of any bond registered as to principal alone, unless registered to bearer, shall be payable only to or upon the order of the registered owner or his legal representative, but the coupons appertaining to any bond register- ed asto principal shall remain payable to bearer notwithstanding such registration. No charge shall be made to any bondholder for the privilege of registration and transfer hereinabove granted, but any bondholder requesting any such registration or transfer shall pay any tax or other governmental charge required to be paid with respect thereto. As to any bond registered as to principal, the person in whose name the same shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes and payment of or on account of the principal of any such bond shall be made only to or upon the order of the registered owner thereof, or his legal representative, and neither the City, the Trustee, nor the bond registrar shall be affected by any notice to the contrary, but such registration may be changed as herein pro- vided. All such payments shall be valid and effectual to satisfy and discharge, the liability upon such bond to the extent of the sum or sums so paid. The City, the Trustee, the bond registrar and the paying agent may deem and treat the bearer of any bond which shall not at t'hb time be registered as to principal, and the bearer of any coupon appertaining to any bond, whether such bond be registered as to principal or not, as the absolute owner of such bond or coupon, asthe case may be, whether such bond or coupon shall be overdue or not, for the purpose of receiving payment thereof and for all other purposes whatsoever, and neither the City, the Trustee, the bond registrar nor the paying agent shall be affected by any notice to the contrary. ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY Section 301. The bonds shall be non - callable prior to December 1, 1966 except (1) from proceeds received from condemna- tion (as set forth in the Jacuzzi Lease Agreement described in this Indenture) and (2) from the amounts received pursuant to the exercise by the Lessee under the Jacuzzi Lease Agreement of its options to purchase (as set forth in Section 1902 of the Jacuzzi Lease Agreement), and if funds from said sources are received dur- ing said period, the bonds shall be called, in whole or in part to the extent of the funds so received,on any interest paying date in inverse numerical order at the principal amount of the bonds being called plus accrued interest to the redemption date and plus a premium of 5 3/870 of the principal amount. On and after December 1, 1966, the bonds shall be callable for payment prior to maturity from funds from any source (including without limitation the sources described above from which a call may be made prior to December 1, 19662 it being mandatory to call bonds to the extent of funds from said sources), in whole or in part, in inverse numer- ical order on any interest paying date at the principal amount of the bonds being called plus accrued interest to the redemption date and plus a premium of such principal amount as follows: 5 3/8% 4 7/8% 4 3/8% 3 7/87. 3 3/8% 2 7/8% 2 3/8% 1 7/87. 1 3/87. 7/8 of 17. 3/8 of 1% and no pr, if redeemed if redeemed If redeemed if redeemed if redeemed if redeemed if redeemed if redeemed if redeemed if redeemed if redeemed emium if red December December December December December December December December December December December aemed the, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, rea 1966 to June 1967 to June 1968 to June 1969 to June 1970 to June 1971 to June 1972 to June 1973 to June 1974 to June 1975 to June 1976 to June fter. 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1967, 1968, 1969, 1970, 1971, 1972, 1973, 1974, 1975, 1976, 1977, inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; Opp - s3 1 r ARTICLE III REDEMPTION OF BONDS BEFORE MATURITY Section 301. The bonds shall be non - callable prior to December 1, 1966 except (1) from proceeds received from condemna- tion (as set forth in the Jacuzzi Lease Agreement described in this Indenture) and (2) from the amounts received pursuant to the exercise by the Lessee under the Jacuzzi Lease Agreement of its options to purchase (as set forth in Section 1902 of the Jacuzzi Lease Agreement), and if funds from said sources are received dur- ing said period, the bonds shall be called, in whole or in part to the extent of the funds so received,on any interest paying date in inverse numerical order at the principal amount of the bonds being called plus accrued interest to the redemption date and plus a premium of 5 3/870 of the principal amount. On and after December 1, 1966, the bonds shall be callable for payment prior to maturity from funds from any source (including without limitation the sources described above from which a call may be made prior to December 1, 19662 it being mandatory to call bonds to the extent of funds from said sources), in whole or in part, in inverse numer- ical order on any interest paying date at the principal amount of the bonds being called plus accrued interest to the redemption date and plus a premium of such principal amount as follows: 5 3/8% 4 7/8% 4 3/8% 3 7/87. 3 3/8% 2 7/8% 2 3/8% 1 7/87. 1 3/87. 7/8 of 17. 3/8 of 1% and no pr, if redeemed if redeemed If redeemed if redeemed if redeemed if redeemed if redeemed if redeemed if redeemed if redeemed if redeemed emium if red December December December December December December December December December December December aemed the, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, rea 1966 to June 1967 to June 1968 to June 1969 to June 1970 to June 1971 to June 1972 to June 1973 to June 1974 to June 1975 to June 1976 to June fter. 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1967, 1968, 1969, 1970, 1971, 1972, 1973, 1974, 1975, 1976, 1977, inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; inclusive; Opp - s3 • r t t Section 302. Notice of the call for redemption shall be published one time in a newspaper published in the City of Little Rock, Arkansas and having a general circulation throughout the State of Arkansas, with the publication to be not more than sixty (60) and not less than thirty (30) days before the date of re- demption. In addition, notice of redemption shall be mailed by registered or certified mail to the registered owner of any bond registered as to principal addressed to such registered owner at his registered address and placed in the mails not less than thirty (30) days prior to the date fixed for redemption. In the event that all of the bonds are registered as to principal, notice in writing by registered or certified mail to the owner or owners thereof not less than thirty (30) days prior to the date fixed for redemption shall be sufficient and published notice of the call for redemption need not be given. Each notice shall specify the numbers and maturities of the bonds being called and the date on which they shall be presented for payment. After the date speci- fied in said call, the bond or bonds so called will cease to bear interest, provided funds for their payment are on deposit with the pahing agent at that time, and, except for the purpose of payment, shall no longer be protected by the Indenture and shall not be deemed to be outstanding under the provisions of this Indenture. It shall not be necessary to give written notice of the redemption to the holder of any bearer bond. Section 303. All bonds which have been redeemed shall be cancelled by the Trustee together with unmatured coupons apper- taining thereto and shall not be reissued. Section 304. All unpaid interest coupons which appertain to bonds so called for redemption and which shall have become payable on or prior to the date of redemption shall continue to be payable to the bearers severally and respectively upon the presenta- tion and surrender of such coupons. ARTICLE IV GENERAL COVENANTS Section 401. The City covenants that it will promptly pay the principal of and interest on every bond issued under this Indenture at the place, on the dates and in the manner provided herein and in said bonds, and in the coupons appertaining thereto according to the true intent and meaning thereof. The principal and interest (except interest, if any, paid from the proceeds from the sale of the bonds and accrued interest) are payable solely from revenues derived from the Project, which revenues are hereby specifically pledged to the payment thereof in the manner and to the extent herein specified, and nothing in the bonds or coupons or in this Indenture should be considered as pledging any other funds or assets of the City (except the securing of 1he indebted- ness evidenced by the bonds and coupons by a mortgage on the Project). Anything in this Indenture to the contrary notwithstand- ing, it is understood that whenever the City makes any covenants involving financial commitments, including, without limitation, those in the various Sections of Article IV, it pledges no funds or revenues other than those provided for in the Jacuzzi Lease Agreement and the revenues derived from and the avails of the mortgaged property, but nothing herein shall be construed as prohibiting the City from using any other funds and revenues. Section 402. The City covenants that it will faithfully perform at all times any andall covenants, undertakings, stipula- tions and provisions contained in this Indenture, in any and every bond executed, authenticated and delivered hereunder and in all ordinances pertaining thereto. The City covenants that it is duly authorized under the Constitution and laws of the State of Arkansas, including particularly and without limitation Act No. 9, to issue 000 - ;? 3 ,B -. 15� 1 the bonds authorized hereby and to execute this Indenture, to mort- gage the property described and mortgaged herein and to pledge the revenues in the manner and to the extent herein set forth; that all action on its part for the issuance of the bonds and the execution and delivery of this Indenture has been duly and effectively taken; and that the bonds in the hands of the holders and owners thereof are and will be valid and enforceable obligations of the City according to the import thereof. Section 403. The City covenants that it lawfully owns and is lawfully possessed of the lands described and mortgaged here- in and that it has good and indefeasible title and estate therein in fee simple to the extent and subject to such qualifications as are set forth in the granting clauses of this Indenture and that it warrants and will defend the title thereto and every part thereof to the Trustee, its successors and assigns, for the benefit of the holders and owners of the bonds against the claims and demands of all persons whomsoever. The City covenants that it will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, such Indenture or Indentures supple- mental hereto and such further acts, instruments, and transfers as the Trustee may reasonably require for the better assuring, transferring, mortgaging, pledging, assigning and confirming unto the Trustee all and singular the property herein described and the revenues pledged hereby to the payment of the principal of and in- terest on the bonds. Section 404. The City covenants that it will promptly cause w be paid all lawful taxes, charges, assessments, imposts and governmental charges at any time levied or assessed upon or against the mortgaged property, or any part thereof, which might impair or prejudice the lien and priority of this Indenture; provided, however, that nothing contained in this section shall require the City to cause to be paid any such taxes, assessments, imposts or charges so long as the validity thereof is being con- • T r + tested in good faith and by appropriate legal proceedings, and, provided, also that such delay in payment shall not subject the mortgaged property or any part thereof to forfeiture or sale. Section 405. The City covenants that it will at all times cause to be maintained, preserved and kept the mortgaged property in good condition, repair and working order, and that it will from time to time cause to be made all needed repairs, replacements, additions, betterments and improvements so that the operation and business pertaining to the mortgaged property shall at all times be conducted properly and so that the mortgaged property shall be fully maintained. Section 406. The City covenants that it will cause this Indenture,and all indentures supplemental thereto, to be kept re- corded and filed in such manner and in such places as may be re- quired by law in order to fully preserve and protect the security of the holders and owners of the bonds and the rights of the Trustee hereunder. Section 407. The City covenants that so long as any bonds issued hereunder and secured by this Indenture shall be outstanding and unpaid, the City will keep, or cause to be kept, proper books of record and account, in which full, true and correct entries will be made of all dealings or transactions of and in relation to the Project and the revenues derived from the Project. When requested by the Trustee, the City agrees to have the said books of record and account audited by an independent Certified Public Accountant. The audit report shall contain at least the following information: (a) All revenues derived from the Project and all expenses incurred by the City in con- nection with the Project; (b) All payments, deposits, and credits to any payment, transfers and withdrawals from the funds created under the provisions of this Indenture; W The details pertaining to bonds issued, paid, and redeemed; and (d) The amounts on hand in each fund showing the respective amounts to the credit of each fund and any security held therefor and showing the details of any investments thereof. The City further covenants that all books and documents relating to the Project and the revenues derived from the Project shall at all times be open to the inspection of such accountants or other agencies as the Trustee may from time to time designate. In this regard, so long as the Jacuzzi Lease Agreement is in force and effect, the records kept by the Trustee and Paying Agent in connection with its duties as such, shall be deemed fully compli- ance by the City with its obligations under this Section 407. Section 408. To the extent that such information shall be made known to the City underthe terms of this Section, it will keep on file at the office of the Trustee a list of names and addresses of the last known holders of all bonds payable to bearer and believed to be held by each of such last known holders. Any bondholder may request that his name and address be placed on said list by filing a written request with the City or with the Trustee, which request shall include a statement of the principal amount of bonds held by such holder and the numbers of such bonds. The Trustee shall be under no responsibility with regard to the accur- acy of said list. At reasonable times and under reasonable regu- lations established by the Trustee, said list may be inspected and copies by holders and /or owners (or a designated representative thereof) of ten per cent (10%) or more in principal amount of bonds outstanding hereunder, such ownership and the authority of any such designated representative to be evidenced to the satis- faction of the Trustee. Section 409. It is understood that the Project has been leased to Jaccuzi under a Lease and Agreement dated August 1, 19612 wherein the City is Lessor and Jacuzzi is Lessee. The said Lease and Agreement is recorded in the office of the Circuit Clerk and Ex officio Recorder of Pulaski County, Arkansas and is referred to herein as the "Jacuzzi Lease Agreement1°. A copy of the Jacuzzi Lease Agreement is on file with the Trustee and with the City Clerk of the City and reference is hereby made to the Jacuzzi Lease Agreement for a statement of the terms and conditions thereof and for a detailed statement of the rights and obligations of the parties thereunder. The lien of this Indenture is subject and subordinate to the Jaccuzi Lease Agreement. The City agrees to enforce all covenants and obligations of the Lessee under the Jacuzzi Lease Agreement and agrees that the Trustee in its own name or in the name of the City may enforce all rights of the Lessor and all obligations of the Lessee under and pursuant to said Jacuzzi Lease Agreement for and on behalf of the bondholders, whether or not the Lessee is in default in its covenants to enforce such rights and obligations. Section 410. The City covenants that it will not sell or otherwise dispose of the mortgaged property, except to Jacuzzi in accordance with the provisions of the Jacuzzi Lease Agreement, and that it will not encumber the same or any part thereof, or its interest therein or create or permit to be created any charge or lien on the revenues derived therefrom, except as provided in this Indenture. ' 1 Section 409. It is understood that the Project has been leased to Jaccuzi under a Lease and Agreement dated August 1, 19612 wherein the City is Lessor and Jacuzzi is Lessee. The said Lease and Agreement is recorded in the office of the Circuit Clerk and Ex officio Recorder of Pulaski County, Arkansas and is referred to herein as the "Jacuzzi Lease Agreement1°. A copy of the Jacuzzi Lease Agreement is on file with the Trustee and with the City Clerk of the City and reference is hereby made to the Jacuzzi Lease Agreement for a statement of the terms and conditions thereof and for a detailed statement of the rights and obligations of the parties thereunder. The lien of this Indenture is subject and subordinate to the Jaccuzi Lease Agreement. The City agrees to enforce all covenants and obligations of the Lessee under the Jacuzzi Lease Agreement and agrees that the Trustee in its own name or in the name of the City may enforce all rights of the Lessor and all obligations of the Lessee under and pursuant to said Jacuzzi Lease Agreement for and on behalf of the bondholders, whether or not the Lessee is in default in its covenants to enforce such rights and obligations. Section 410. The City covenants that it will not sell or otherwise dispose of the mortgaged property, except to Jacuzzi in accordance with the provisions of the Jacuzzi Lease Agreement, and that it will not encumber the same or any part thereof, or its interest therein or create or permit to be created any charge or lien on the revenues derived therefrom, except as provided in this Indenture. • , 1 t F t ART ICLE V REVENUES AND FUNDS Section 501. The bonds herein authorized are not general obligations of the City but are special obligations payable solely from revenues derived from the Project and as authorized-by Act No. 9 and provided herein, the bonds are secured by a mortgage on the mortgaged property. As heretofore set forth, particularly in Section 409 hereof, the Project has been leased to Jacuzzi and under the Jacuzzi Lease Agreement the basic rent payments are to be remitted directly to the Trustee for the account of the City and deposited in the Bond Fund (hereafter created). The said basic rent pay- ments are at least sufficient in mount to insure the prompt pay- ment of the annual principal of and interest on the bonds and the entire amount of said basic rent payments is pledged to the pay- went of the principal of and interest on the bonds. Section 502. There is hereby created and ordered to be established with the Trustee a trust fund to be designated "1961 Industrial Development Revenue Bond Retirement Fund - Jacuzzi Project" (which is sometimes referred to herein as the 19Bond Fund "), Section 503. There shall be deposited into the Bond Fund all accrued interest received at the time of the delivery of the bonds, and, in addition, such amount from the proceeds of the sale of the bonds asihall be necessary, together with such accrued interest, to cover debt service requirements on the bonds until rental payments commence under the Jacuzzi Lease Agreement. In addition, there shall be deposited into the Bond Fund, as and when received: (a) The amount remaining in the Construction Fund (hereafter created) after all costs and ex- penses of and in connection with the Project have been paid for; Gpp -.23 �,q (b) All basic rent payments specified in Section 203 of the Jacuzzi Lease Agreement; and (c) All other moneys received by the Trustee under and pursuant to any of the pro- visions of the Jacuzzi Lease Agreement directing such moneys to be paid into the Bond Fund. The City hereby covenants and agrees that so long as anyr of the . bonds issued hereunder are outstanding, it will deposit or cause to be deposited in the Mond Fund for its account sufficient funds from revenues and income derived from the Project (whether or not under and pursuant to the Jacuzzi Lease Agreement) to promptly meet and pay the principal of and interest on the bonds as the same be- come due and payable, and to this end the City covenants and agrees that, so long as any bonds issued hereunder are outstanding, if will cause the Project to be continuously and efficiently operated as a revenue and income producing undertaking, and that should there be a default under the Jacuzzi Lease Agreement with the result that the right of possession of the leased premises under the Jacuzzi Lease Agreement is returned to the City, the City will fully co- operate with the Trustee and with the bondholders to the end of fully protecting the rights and security of the bondholders, and, if and when requested by the Trustee, the City shall diligently proceed in good faith and use its best efforts to secure another tenant for the premises to the end of at all times deriving suf- ficient revenues and income from the Project to promptly meet and pay the principal of and interest on the bonds as flee same become due and payable. Nothing herein shall be construed as requiring the City to use any funds or revenues from any source other than funds and revenues derived from the Project for the payment of the principal of and interest on the bonds, but nothing herein shall be construed as prohibiting the City from doing so. Section 504. Moneys in the Bond Fund shall be used solely for the payment of the principal, interest and redemption premiums, if any, on the bonds either at maturity or at redemption prior to maturity; provided, however, that such provision shall not be construed as prohibiting a refund to Jacuzzi of excess basic rents-, if any, in accordance with the provisions of Section 203 of the Jacuzzi Lease Agreement. Section 505. The Bond Fund shall be in the name of the City, designated as set forth in Section 502, and the Cith hereby irrevocably authorizes and directs the Trustee and Paying Agent to withdraw from the Bond Fund sufficient funds to pay the prin- cipal of and interest on the bonds as the same become due and pay- able, and to use said funds for the purpose of paying said principal and interest, which authorization and direction the Trustee hereby accepts. Section 506. In the event any bonds shall not be pre- sented for payment when the principal thereof becomes due, either at maturity or otherwise, or at the date fixed for redemption there- of, or in the event any coupon shall not be presented for payment at the due date thereof, if there shall have been deposited with the Paying Agent for the purpose, or left in trust if previously so deposited, funds sufficient to pay the principal thereof together with all interest unpaid and due thereon, to the date of maturity thereof, or to the date fixed for redemptionthereof, or to pay such coupon, as the case may be, for the benefit of the holder thereof or the holder of such coupon, all liability of the City to the holder thereof for the payment of the principal thereof and interest thereon, or to the holder of said overdue coupon for the payment thereof, as the case may be, shall forthwith cease, determine and be completely discharged, and thereupon it shall be the duty of the I ► 1 1 � Paying Agent to hold such fund or funds, without liability for interest thereon, for the benefit of the holder of such bond, or the holder of such coupon, as the case may be, who shall thereafter be restricted exclusively to such fund or funds, for any claim of whatever nature on his part under this Indenture or on, or with respect to, said bond or coupon. Section 507. It is understood and agreed that pursuant to the provisions of Section 203(b) of the Jacuzzi.Lease Agreement, the Lessee under said Jacuzzi Lease Agreement agrees to -pay as additional rent the fees and expenses of the paying agent for the bonds and the charges and expenses payable to the Trustee as author- ized and provided by this Trust Indenture. Said Lessee is to make such payments on statements rendered by the Paying Agent and the Trustee. All such additional rent payments received by the Trustee under the Jacuzzi Lease Agreement shall not be paid into the Bond Fund, but shall be set up in separate accounts appropriately desig- nated to identify the particular account and shall be expended by the Trustee solely for the purpose for which such additional rent payments are received, and the Trustee hereby agrees to so establish said accounts and to make payment therefrom for said purposes. Section 508. All moneys required to be deposited with or paid to the Trustee and Paying Agent under any provision of this Indenture shall be held by the Trustee and Paying Agent in trust, and except for moneys deposited with or paid to the Trustee and Pay- ing Agent for the redemption of bonds,notice of which redemption has been duly given, shall, while held by the Trustee and Paying Agent, constitute part of the trust estate and be subject to the lien hereof. Any moneys received by or paid to the Trustee pur- suant to any provision of the Jacuzzi Lease Agreement calling for the Trustee to hold, administer and disburse the same in accordance with the specific provisions of the Jacuzzi Lease Agreement, shall be held, administered and disbursed pursuant to said provision, and where required by the provisions of the Jacuzzi Lease Agreement the Trustee shall set t'?e same aside in a separate account. The City agrees that if it shall receive any moneys pursuant to appli- cable provisions of the Jacuzzi Lease Agreement, it will forthwith upon receipt thereof pay the same over to the Trustee to be held, administered and disbursed by the Trustee in accordance with the provisions of the Jacuzzi Lease Agreement pursuant to which the City may have received the same. Section509. Anything herein to the contrary notwithstand- ing,the Trustee is authorized and directed to refund to the Lessee of the Jacuzzi Lease Agreement all excess rental payments (basic and additional) as specified in the Jacuzzi Lease Agreement, whether such excess amounts be in the Bond Fund or in special accounts. Section 510. It is understood that, pursuant to the provisions of Section 203(x) (2) of the Jacuzzi Lease Agreement, the Lessee will make additional payments of basic rent on the dates and in the years specified therein as prepayments in the inverse order due of basic annual rent to the extent of the payments made under said provision. The amounts of such additional payments shall, remain in and be part of the Bond Fund as a reserve for payment of the principal of and interest on the bonds. If for any reason the moneys in the Bond Fund, exclusive of the amounts in such reserve, shall at any time while any of the bonds issued hereunder shall be outstanding be insufficient to meet when due any interest and /or principal payment, the reserve, or the required portion thereof, shall be used to the extent necessary to make said interest and /or principal payment. ,. Iu _-the .event, of any expenditure from such reserve, the reserve shall be reimbursed in the amount expended therefrom from the first available revenues in the Bond Fund not required for current principal and interest payments on the bonds. t t be held, administered and disbursed pursuant to said provision, and where required by the provisions of the Jacuzzi Lease Agreement the Trustee shall set t'?e same aside in a separate account. The City agrees that if it shall receive any moneys pursuant to appli- cable provisions of the Jacuzzi Lease Agreement, it will forthwith upon receipt thereof pay the same over to the Trustee to be held, administered and disbursed by the Trustee in accordance with the provisions of the Jacuzzi Lease Agreement pursuant to which the City may have received the same. Section509. Anything herein to the contrary notwithstand- ing,the Trustee is authorized and directed to refund to the Lessee of the Jacuzzi Lease Agreement all excess rental payments (basic and additional) as specified in the Jacuzzi Lease Agreement, whether such excess amounts be in the Bond Fund or in special accounts. Section 510. It is understood that, pursuant to the provisions of Section 203(x) (2) of the Jacuzzi Lease Agreement, the Lessee will make additional payments of basic rent on the dates and in the years specified therein as prepayments in the inverse order due of basic annual rent to the extent of the payments made under said provision. The amounts of such additional payments shall, remain in and be part of the Bond Fund as a reserve for payment of the principal of and interest on the bonds. If for any reason the moneys in the Bond Fund, exclusive of the amounts in such reserve, shall at any time while any of the bonds issued hereunder shall be outstanding be insufficient to meet when due any interest and /or principal payment, the reserve, or the required portion thereof, shall be used to the extent necessary to make said interest and /or principal payment. ,. Iu _-the .event, of any expenditure from such reserve, the reserve shall be reimbursed in the amount expended therefrom from the first available revenues in the Bond Fund not required for current principal and interest payments on the bonds. All moneys in the reserve shall be invested in accordance with the provisions of Article VII of this Indenture and any interest earned on such investments shall be placed in and considered part of the said reserve. � t ✓ ARTICLE VI CUSTODY AND APPLICATION OF PROCEEDS OF BONDS Section 601. Accrued interest and the proceeds of the sale of the bonds (herein called "total sale proceeds ") shall be disbursed and handled as follows: (a) The Trustee shall take out of the total sale proceeds the amount necessary to cover debt service requirements on the bonds until basic rental payments commence under the Jacuzzi Lease Agree- went and deposit the same into the Bond Fund; (b) The balance of the total sale proceeds shall be deposited in a special account of the City in a bank that is a mem- ber of the Federal Deposit Insurance Corporation which account shall be designated 1°1961 Industrial Development Bond Construction Fund" (which will be herein called "Construction Fund "). The amount on deposit in the Construction Fund in excess of the amount insured by the Federal Deposit Insurance Corporation must be continuously secured by bonds or other direct or fully guaranteed obligations of the United States of America; provided, however, that any moneys in the Construction Fund invested in accordance with the pro- visions of Article VII hereof need notbe secured. Section 602. Moneys in the Construction Fund shall be expended for project costs and costs and expenses incidental there- to and to the issuance of the bonds, as referred to in the Jacuzzi Lease Agreement. Such expenditures shall be in accordance with and pursuant to requisitions signed by one or more duly designated representatives of the City (which designation shall be in writing and filed with the depository of the Construction Fund and with the Trustee) and signed by one more duly designated representatives of Jacuzzi (which designation shall be in writing and filed with the depository of the Construction Fund and with the Trustee). Each such requisition shall specify: X000 - a3 C -/ 1 f � i r (1) The name of theperson, firm or corporation to whom payment is to be made; (2) The amount of the payment; and (3) That the disbursement is for a proper expense of or pertaining to the Project. In addition, each disbursement concerning expenses over which the architect or architectural firm exercises supervision shall be supported by a certificate signed by a duly authorized representa- tive of the architect or the architectural firm certifying that the disbursement is for a proper expense of the Project and approv- ing the same. The name and address of the architectural firm re- ferred to herein or the architect referred to herein shall be fur- nished to the depository of the Construction Fund and to the Trustee and the name and signature of the duly authorized represen- tative or representatives of the architectural firm or the architect shall be furnished to the depository of the Construction Fund and to the Trustee. The depository of the Construction Fund shall keep records concerning and reflecting all disbursements from the Construction Fund and shall file an accounting of disbursements if and when requested by the City or the Trustee. In this regard, each requisition shall be executed in at least triplicate and one copy thereof shall be filed with the Trustee, one copy with the City Clerk of the City and one copy with Jacuzzi. The depository bank shall make payment from the Construction Fund pursuant to and in accordance with said requisitions. Section 603. Whenever the City and Jacuzzi shall jointly notify the Trustee and the depository of the Construction Fund that any balance remaining in the Construction Fund will not be needed because all project costs have been theretofore paid, any such balance remaining in the Construction Fund shall be deposited in the Bond Fund. ARTICLE VII INVESTMENTS Section 701. (a) Moneys held for the credit of the Construction Fund shall to the extent practicable be invested and reinvested by the depository in direct obligations of, or obliga- tions the principal and interest on which are guaranteed by,the United States Government having maturity dates, or subject to re- demption by the holder at the option of the holder, on or prior to the dates the funds will be needed as reflected by a certificate of the duly authorized representative of the architectural firm super- wising the construction and equipping of the Project. (b) Moneys held for the reserve in the Bond Fund shall to the extent practicable be invested and reinvested by the Trustee in direct obligations of, or obligations the principal of and in- terest on which are guaranteed by, the United States Government, which shall mature, or which shall be subject to redemption by the holder thereof, at the option of the holder, not later than ten (10) years after the date of acquisition. (c) Moneys held for the credit of any other fund shall to the extent practicable be invested and reinvested by the de- pository in direct obligations of, or obligations the principal of and interest on which are guaranteed by, the United States Govern- ment, which shall mature, or which shall be subject to redemption by the holder thereof, at the option of the holder, not later than the date or dates on which the money held for the credit of the particular fund will be required for the purposes intended. (d) Obligations so purchased as an investment of moneys in any such fund shall be deemed at all times a part of such fund, C -3 � r t . i • r ARTICLE VII INVESTMENTS Section 701. (a) Moneys held for the credit of the Construction Fund shall to the extent practicable be invested and reinvested by the depository in direct obligations of, or obliga- tions the principal and interest on which are guaranteed by,the United States Government having maturity dates, or subject to re- demption by the holder at the option of the holder, on or prior to the dates the funds will be needed as reflected by a certificate of the duly authorized representative of the architectural firm super- wising the construction and equipping of the Project. (b) Moneys held for the reserve in the Bond Fund shall to the extent practicable be invested and reinvested by the Trustee in direct obligations of, or obligations the principal of and in- terest on which are guaranteed by, the United States Government, which shall mature, or which shall be subject to redemption by the holder thereof, at the option of the holder, not later than ten (10) years after the date of acquisition. (c) Moneys held for the credit of any other fund shall to the extent practicable be invested and reinvested by the de- pository in direct obligations of, or obligations the principal of and interest on which are guaranteed by, the United States Govern- ment, which shall mature, or which shall be subject to redemption by the holder thereof, at the option of the holder, not later than the date or dates on which the money held for the credit of the particular fund will be required for the purposes intended. (d) Obligations so purchased as an investment of moneys in any such fund shall be deemed at all times a part of such fund, C -3 a and the interest accruing thereon and any profit realized from such investment, shall be credited to such fund, and any loss re- sulting from such investment shall be charged to such fund. ARTICLE VIII POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY Section 801. So long as not otherwise provided in this Trust Indenture, the City and the Lessee of the mortgaged property shall be suffered and permitted to possess, use and enjoy the mortgaged property and appurtenances. Section 802. The Trustee shall be authorized, when re- quested by the City, to join with the City in taking the necessary steps, or, if required, to execute an appropriate telease of the lien of this Indenture, to grant sewer and utility easements over, along, across and under the mortgaged property, provided the Trustee obtains the approval of Jacuzzi and provided the Trustee is satisfied that the location of any such easements and the nature thereof shall not interfere with the reasonable use of the mortgaged property for manufacturing and related purposes and will not inter- fere with the present or logical future use of the mortgaged property by the Lessee of the mortgaged property. Section 803. It is hereby recognized by the City and the Trustee that the Lessee under the Jacuzzi Lease Agreement has reserved the right in Article XXIII thereof to obtain the release from the lien of this Indenture of certain of die mortgaged lands for use in any expansion program of the said Lessee. Upon a sufficient showing to the Trustee and the terms, provisions and con- ditions of Article XXIII of the Jacuzzi Lease Agreement have been satisfied and met, the Trustee shall, and is hereby authorized and directed to, take the necessary steps to release said lands being utilized in any such expansion program from the lien of this Indenture. Furthermore, it is recognized that the City may issue bonds to finance the cost of any such expansion program, and nothing X00 -�3 C -s � R in this Indenture shall be construed as prohibiting the City from issuing bonds for such purpose, from entering into a separate Lease Agreement with the Lessee under the Jacuzzi Lease Agreement, or entering into a supplemental lease agreement with the Lessee under the Jacuzzi Lease Agreement, or the Lessee's authorized successors and ast*gns, from pledging the rentals derived from any such separate lease agreement or any such supplemental lease agreement to the payment of the bonds then being issued with a pledge thereon prior to any pledge in favor of the bonds now being issued, from placing a firstlien by mortgage on and pledging all revenues derived from any lands and improvements covered by said separate lease agreement or said supplemental lease agreement, and on any facilities, machinery, equipment and other properties purchased, constructed or otherwise acquired out of the proceeds of the bonds then being issued, even though some of said property may be located on lands and improvements constituting part of the mortgaged property under this Trust Indenture, or from placing a lien upon any portion ofthe mortgaged property under this Trust Indenture as security for the bonds then being issued, or making a pledge of any of the revenues pledged under this Trust Indenture in favor of the bonds then being issued, so long as any such lien on the mortgaged property covered by this Trust Indenture (and not released pursuant to the provisions of this Article VIII) and any such pledge on the revenues pledged to the bonds secured by this Trust Indenture (but expressly excluding revenues from lands released pursuant to the provisions of this Article VIII or revenues derived from a separate lease agreement or supplemental lease agreement as above referred to) are subordinate tothe lien and pledge of this Trust Indenture to and in favor of the bonds secured hereby. in this Indenture shall be construed as prohibiting the City from issuing bonds for such purpose, from entering into a separate Lease Agreement with the Lessee under the Jacuzzi Lease Agreement, or entering into a supplemental lease agreement with the Lessee under the Jacuzzi Lease Agreement, or the Lessee's authorized successors and ast*gns, from pledging the rentals derived from any such separate lease agreement or any such supplemental lease agreement to the payment of the bonds then being issued with a pledge thereon prior to any pledge in favor of the bonds now being issued, from placing a firstlien by mortgage on and pledging all revenues derived from any lands and improvements covered by said separate lease agreement or said supplemental lease agreement, and on any facilities, machinery, equipment and other properties purchased, constructed or otherwise acquired out of the proceeds of the bonds then being issued, even though some of said property may be located on lands and improvements constituting part of the mortgaged property under this Trust Indenture, or from placing a lien upon any portion ofthe mortgaged property under this Trust Indenture as security for the bonds then being issued, or making a pledge of any of the revenues pledged under this Trust Indenture in favor of the bonds then being issued, so long as any such lien on the mortgaged property covered by this Trust Indenture (and not released pursuant to the provisions of this Article VIII) and any such pledge on the revenues pledged to the bonds secured by this Trust Indenture (but expressly excluding revenues from lands released pursuant to the provisions of this Article VIII or revenues derived from a separate lease agreement or supplemental lease agreement as above referred to) are subordinate tothe lien and pledge of this Trust Indenture to and in favor of the bonds secured hereby. t � 1 ARTICLE IX DISCHARGE OF LIEN Section 901. If the City shall pay or cause to be paid to the holders and owners of the bonds and coupons the principal and interest to become due thereon at the times and in the manner stipulated therein, and if the City shall keep, perform and observe all and singular the covenants and promises in the bonds and in this Indenture expressed as to be kept, performed and observed by it or on its part, then these presents and the estate and rights hereby granted shall cease, determine and be void, and thereupon the Trustee shall cancel and discharge the lien of this Indenture, and execute and deliver to the City such instruments in writing as shall be requisite to satisfy the lien hereof, and re- convey to the City the estate hereby conveyed, and assign and deliver to the City any property at the time subject to the lien of this Indenture which may then be in its possession, except cash held by it for the payment of the principal of and interest on the bonds. Bonds and coupons for the payment or redemption of which moneys shall have been deposited with the Trustee (whether upon or prior to the maturity or the redemption date of such bonds) shall be deemed to be paid within the meaning of this Section; provided, how- ever, that if such bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been duly given. The City may at any time surrender to the Trustee for cancellation by it any bonds previously authenticated and delivered hereunder, together with any unpaid coupons thereto belonging, which the City may have acquired in any manner whatsoever, and such bonds and coupons, upon such surrender and cancellation, shall be deemed to be paid and retired. COO - _�3 C. -9 ARTICLE X DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS Section 1001. If any of the following events occur, sub- ject to the provisions of Section 1013 hereof, it is hereby defined as and declared to be and to constitute an "event of default "; (a) Default in the due and punctual payment of any inter- est on any bond hereby secured and outstanding and the continuance thereof for a period of thirty (30) days; (b) Default in the due and punctual payment of any moneys required to be paid to the Trustee under the provisions of Article V hereof and the continuance thereof for a period of thirty (30) days; (c) Default in the due and punctual payment of the prin- cipal of any bond hereby secured and outstanding, whether at the stated maturity thereof, or upon proceedings for redemption thereof, or upon the maturity thereof by declaration; (d) Default in the performance or observance of any other of the covenants, agreements or conditions on its part in this Indenture, or in the bonds contained, and the continuance thereof for a period of sixty (60) days after written notice to the City by the Trustee or by the holders of not less than ten per cent (lM/) in aggregate principal amount of bonds outstanding hereunder. The term "default0° shall mean default by the City in the performance or observance of any of the covenants, agreements or conditions on its part contained in this Indenture, or in the bonds outstanding hereunder, exclusive of any period of grace required to constitute a default an "event of default" as hereinabove provided. Section 1002. Upon the occurrence of an event of default, the Trustee may, and upon the written request of the holders of twenty -five per cent (25%) in aggregate principal amount of bonds outstanding hereunder, shall, by notice in writing delivered to the L' _p City, declare the principal of all bonds hereby secured then out- standing and the interest accrued thereon immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable. Section 1003. Upon the occurrence of an event of default, the City, upon demand of the Trustee, shall forthwith surrender to it the actual possession of, and it shall be lawful for the Trustee, by such officer or agent as it may appoint, to take possession of, all or any part of the mortgaged property with the books, papers and accounts of the City pertaining thereto and to hold, operate and manage the same, and from time to time to make all needful repairs And improvements as by the Trustee shall be deemed,wise; and the Trustee, with or without such permission, may collect, receive and sequester the tolls, rents, revenues, issues, earnings, income, products and profits therefrom and out of the same and any moneys received from any receiver of any part thereof pay, and /or set up proper reserves for the payment of, all proper costs and expenses of so taking, holding and managing the same, including reasonable com- pensation to the Trustee, its agents and counsel, and any charges of the Trustee hereunder, and any taxes, and assessments and other charges prior to the lien of this Indenture which the Trustee may deem it wise to pay, and all expenses of such repairs and improve- meets, and apply the remainder of the moneys so received by the Trustee in accordance with the provisions of Section 1008 hereof. Whenever all that is due upon such bonds and installments of interest under the terms of this Indenture shall have been paid and all de- faults made good, the Trustee shall surrender possession to the City, its successors or assigns; the same right of entry, however, to exist upon any subsequent event of default. While in possession of such property the Trustee shall render annually to the bondholders, at their addresses as set forth in the list required by Section 408 hereof, a summarized statement of income and expenditures in connection therewith. Section 1004. Upon the occurrence of an event of default, the Trustee may, as an alternative, proceed either after entry or without entry, to pursue any available remedy by suit at law or equity to enforce the payment of the principal of and interest on the bonds then outstanding hereunder, including, without limitation, foreclosure and mandamus. If an event of default shall have occurred, and if it shall have been requested so to do by the holders of twenty -five per cent (25X) in aggregate principal amount of bonds outstanding hereunder and shall have been indemnified as provided in Section 1101 hereof, the,Trustee shall be obliged to exercise such one or more of the rights and powers conferred upon it by this Section and by Section 1003 as the Trustee, being advised by counsel, shall deem most ex- pedient in the interests of the bondholders. No remedy by the terms of this Indenture conferred upon or reserved to the Trustee (or to the bondholders) is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accru- ing upon any default or event of default shall impair any such right or power or shall be construed to be a waiver of any such default or event of default or acquiescence therein; and every such right and power may be exercised from time to time and as often as may be deemed expedient. No waiver of any default or event of default hereunder, whether by the Trustee or by the bondholders, shall extend to or shall affect any subsequent default or event of default or shall im- pair any rights or remedies consequent thereon. Section 1005. Anything in this Indenture to the contrary notwithstanding, the holders of a majority in aggregate principal amount of bonds outstanding hereunder shall have the right, at any time, by an instrument or instruments in writing executed and de- livered to the Trustee, to direct the method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Indenture, or for the appointment of a receiver or any other proceedings hereunder; provided that such direction shall not be otherwise than in accordance with the pro- visions of law and of this Trust Indenture. Section 1006. Upon the occurrence of an event of default, and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and of the bond- holders under this Indenture, the Trustee shall be entitled, as a matter of right, to the appointment of a receiver or receivers of the mortgaged property and of the tolls, rents, revenues, issues, earnings, income, products and profits thereof, pending such pro - ceedings with such powers as the court making such appointment shall confer. Section 1007. In case of an event of default on its part, as aforesaid, to the extent that such rights may then lawfully be waived, neither the City nor anyone claiming through it or under it shall or will set up, claim, or seek to take advantage of any appraisement, valuation, stay, extension or redemption laws now or hereafter in force, in order to prevent or hinder the enforcement of this Indenture, but the City, for itself and all who may claim through or under it, hereby waives, to the extent that it lawfully may do so, the benefit of all such laws and all right of appraisement and redemption to which it may be entitled under the laws of the State of Arkansas. Section 1008. Available moneys shall be applied by the Trustee as follows: (a) Unless the principal of all the bonds shall have become or shall have been declared due and payable, all such moneys shall be applied: First: to the payment to the persons entitled thereto of all installments of interest then due, in the order of the maturity of the installments of such interest, and, if the amount available shall not be sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the persons entitled thereto, without any discrimina- tion or privilege; Second: to the payment to the persons entitled thereto of the unpaid principal of any of the bonds which shall have become due ;other than bonds called for redemption for the payment of which honeys are held pursuant to the provisions of this Indenture), in the order of their due dates, with interest on such bonds from the re- spective dates upon which they become due, and, if the amount avail- able shall not be sufficient to pay in full bonds due on any particu- lar date, together with such interest, then to the payment ratably, according to the amount of principal due on such date, to the persons entitled thereto without any discrimination or privilege; and Third: to the payment of the interest on and the principal of the bonds, and to the redemption of bonds, all in accordance with the provisions of Article V of this Indenture. (b) If the principal of all the bonds shall have become Sue or shall have been declared due and payable, all such moneys Shall be applied to the payment of the principal and interest then due and unpaid upon the bonds, without preference or priority of principal over interest or of interest over principal, or of any installment of interest over any other installment of interest, or of any bond over any other bond,ratably, according to the amounts due respectively for principal and interest, to the persons entitled thereto without any discrimination or privilege. (c) If the principal of all the bonds shall have been declared due and payable, and if such declaration shall thereafter have been rescinded and annulled under the provisions of this Article, then, subject to the provisions of paragraph (b) of this Section in the event that the principal of all the bonds shall later become due or be declared due and payable, the moneys shall be ap- plied in accordance with the provisions of paragraph (a) of this Section. Whenever moneys are to be applied by the Trustee pursuant to the provisions of this Section, such moneys shall be applied by it at such times, and from time to time, as it shall determine, having due regard to the amount of such moneys available for appli- cation and the likelihood of additional moneys becoming available for such application in the future. Whenever the Trustee shall apply such funds, it shall fix the date (which shall be an interest pay- ment date unless it shall deem another date more suitable) upon which such application is to be made and upon such date interest on the amounts of principal to be paid on such dates shall cease to accrue. The Trustee shall give such notice as it may deem appro- priate of the deposit with it of any such moneys and of the fixing of any such date, and shall not be required to make payment to the holder of any unpaid coupon or any bond until such coupon or such bond and all unmatured coupons, if any, appertaining to such bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Section 1009. All rights of action (including the right to file proof of claim) under this Indenture or under any of the bonds or coupons may be enforced by the Trustee without the a t � of any bond over any other bond,ratably, according to the amounts due respectively for principal and interest, to the persons entitled thereto without any discrimination or privilege. (c) If the principal of all the bonds shall have been declared due and payable, and if such declaration shall thereafter have been rescinded and annulled under the provisions of this Article, then, subject to the provisions of paragraph (b) of this Section in the event that the principal of all the bonds shall later become due or be declared due and payable, the moneys shall be ap- plied in accordance with the provisions of paragraph (a) of this Section. Whenever moneys are to be applied by the Trustee pursuant to the provisions of this Section, such moneys shall be applied by it at such times, and from time to time, as it shall determine, having due regard to the amount of such moneys available for appli- cation and the likelihood of additional moneys becoming available for such application in the future. Whenever the Trustee shall apply such funds, it shall fix the date (which shall be an interest pay- ment date unless it shall deem another date more suitable) upon which such application is to be made and upon such date interest on the amounts of principal to be paid on such dates shall cease to accrue. The Trustee shall give such notice as it may deem appro- priate of the deposit with it of any such moneys and of the fixing of any such date, and shall not be required to make payment to the holder of any unpaid coupon or any bond until such coupon or such bond and all unmatured coupons, if any, appertaining to such bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Section 1009. All rights of action (including the right to file proof of claim) under this Indenture or under any of the bonds or coupons may be enforced by the Trustee without the possession of any of the bonds or coupons or the production thereof in any trial or other proceeding relating thereto and any such suit or- proceeding instituted by the Trustee shall be brought in its name as Trustee, without the necessity of joining as plaintiffs or de- fendants any holders of the bonds hereby secured, and any recovery of judgment shall be for the equal benefit of the holders of the out- standing bonds and coupons. Section 1010. No holder of any bond or coupons shall have any right to institute any suit, action or proceeding in equity or at law for the enforcement of this Indenture or for the execution of any trust hereof or for the appointment of a receiver or any other remedy hereunder, unless a default has occurred of which the Trustee has been notified as provided in sub - section (g) of Section 1101, or of which by said sub - section it is deemed to have notice, nor unless such default shall have become an event of default and the holders of twenty -five per cent (25%) in aggregate principal amount of bonds outstanding hereunder shall have made written request to the Trustee and shall have offered it reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name, nor unless also they have offered to the Trustee indemnity as provided in Section 1101 nor unless the Trustee shall thereafter fail or refuse to exercise the powers herein- before granted, or to institute such action, suit or proceeding in its own name; and such notification, request and offer ofindemnity are hereby declared in every such case at the option of the Trustee to be conditions precedent to the execution of the powers and trusts of this Indenture, and to any action or cause of action for the en- forcement of this Indenture or for the appointment of a receiver or for any other remedy hereunder; it being understood and intended that no one or more holders of the bonds or coupons shall have any right in any manner whatsoever to affect,disturb, or prejudice the lien of this Indenture by his or their action or to enforce any right hereunder except in the manner herein provided, and that all proceed- ings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of the holders of all bonds outstanding hereunder. Nothing in this Indenture con- tained shall, however, affect or impair the right of any bondholder to enforce the payment of the principal of and interest on any bond at and after the maturity thereof, or the obligation of the City to pay the principal of and interest on each of the bonds issued hereunder to the respective holders thereof at the time and place. in said bonds and the appurtenant coupons expressed. Section 1011. In case the Trustee shall have proceeded to enforce any right under this Indenture by the appointment of a re- ceiver, by entry or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been deter- mined adversely to the Trustee, then and in every such case the City and the Trustee shall be restored to their former positions and rights hereunder with respect to the property herein conveyed, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken. Section 1012. The Trustee may in its discretion waive any event of default hereunder and its consequences and rescind any declaration of maturity of principal, and shall do so upon the writ- ten request of the holders of (1) one -half in aggregate principal amount of all the bonds outstanding hereunder in respect of which de- fault in the payment of principal and /or interest exists, or (2) 50% in principal amount of all the bonds outstanding hereunder 0 . / L I i in the case of any other default, provided, however, that there shall not be waived (a) any event of default in the payment of the principal of any bonds issued hereunder and outstanding hereunder at the date of maturity specified therein or (b) any default in the payment of the interest-Or of bond fund moneys unless prior to such waiver or rescission all arrears of interest, with interest at the rate borne by the bonds in respect of which such default shall have occurred on overdue installments of interest or all arrears of bond fund payments, as the case may be, and all expenses of the Trustee and Paying Agent, shall have been paid or provided for, and in case of any such waiver or rescission;or in case any proceeding taken by the Trustee on account of any such default shall have been discon- tinued or abandoned or determined adversely, then and in every such case the City, Trustee and the bondholders shall be restored to their former positions and rights hereunder respectively; but no such waiver or rescission shall extend to any subsequent or other default, or impair any right consequent thereon. Section 1013. Anything herein to the contrary notwith- standing, no default shall constitute an event of default until actual notice of such default by registered or certified mail (with or without return receipt requested) shall be given to Jacuzzi and Jacuzzi shall not have corrected said default or caused such default to be corrected within a period of thirty (30) days after the mailing of said notice; provided, however, that if said default be such that it cannot be corrected within said thirty (30) day period, the failure to correct the same shall not constitute an event of default if corrective action is instituted within said thirty (30) days period and diligently pursued until the default is corrected. With regard to any alleged default, the City hereby names and appoints Jacuzzi as its attorney in fact with full authority to perform any covenant or obligation of the City alleged t r in said notice to constitute a default, in the name and stead of the City with full power to do any and all things and acts to the same extent that the City could do and perform any such things and acts with full power of substitution. In this regard it is agreed that the parties hereto have familiarized themselves with the terms and provisions of the Jacuzzi Lease Agreement. Section 1014. The rights and remedies provided in favor of the Trustee and the holders of the bonds by the provisions of Sections 1003 to 1007 hereof, inclusive, are in each case subject to the proviso that, so long as there be no default by the Lessee under the Jacuzzi Lease Agreement, each and every such right and remedy shall be, and may be exercised only, subject and subordi- nate to the rights of said Lessee. � � r t r in said notice to constitute a default, in the name and stead of the City with full power to do any and all things and acts to the same extent that the City could do and perform any such things and acts with full power of substitution. In this regard it is agreed that the parties hereto have familiarized themselves with the terms and provisions of the Jacuzzi Lease Agreement. Section 1014. The rights and remedies provided in favor of the Trustee and the holders of the bonds by the provisions of Sections 1003 to 1007 hereof, inclusive, are in each case subject to the proviso that, so long as there be no default by the Lessee under the Jacuzzi Lease Agreement, each and every such right and remedy shall be, and may be exercised only, subject and subordi- nate to the rights of said Lessee. ARTICLE XI THE MSTEE t s Section 1101. The Trustee hereby accepts the trusts im- posed upon it by this Indenture, and agrees to perform said trusts as an ordinarily prudent trustee under a corporate mortgage, but only upon and subject to the following expressed terms and conditions: (a) The Trustee may execute any of the trusts or powers hereof and perform any duties required of it by or through attorneys, agents, receivers or employees, and shall be entitled to advice of counsel concerning all matters of trusts hereof and its duties here- under, and may in all cases pay reasonable compensation to all such attorneys, agents, receivers, and employees as may reasonably be employed in connection vith the trusts hereof. The Trustee may act upon the opinion or advice of any attorney, surveyor, engineer or accountant selected by It in the exercise of reasonable care, or, if selected or retained by the City prior to the occurrence of a default of which the Trustee has been notified as provided in sub - section (g) of this Section, or of which by said sub- section the Trustee is deemed to have notice, approved by the Trustee in the exercise of such care. The Trustee shall not be responsible for any loss or damage resulting from any action or non - action in accordance with any such opinion or advice. (b) The Trustee shall not be responsible for any recital herein, or in said bonds (except in respect to the certificate of the Trustee endorsed on such banda), or for the recording or re- recording, filing or re- filing of this Indenture, or for insuring the property herein conveyed or collecting aWl insurance moneys, or for the validity of the execution by the ..ity of this Indenture or of any supplemental indentures or instrument of further assurance, or for the sufficiency of the securit3 for the bonds issued hereunder 000 - .2,3 D_' _ or intended to be secured by, or for the value or title of the property herein conveyed or otherwise as to the maintenance of the security hereof; except that in the event the Trustee enters into possession of a part or all of the property herein conveyed pursu- ant to any provision of this Indenture, it shall use due diligence in preserving such property; and the Trustee shall not be bound to ascertain or inquire as to the performance or observance of any covenants, conditions or agreements on the part of the City, except as hereinafter set forth; but the Trustee may require of the City full information and advice as to the performance of the covenants, conditions and agreements aforesaid as to the condition of the pro- perty herein conveyed. (c) The Trustee may become the owner of bonds and cou- pons secured hereby with the same rights which it would have if not Trustee. (d) The Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram, or other paper or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Indenture upon the request or authority or consent of any person wbo at the time of making such request or giving such authority or con- sent is the owner of any bond secured hereby, shall be conclusive and binding upon all future owners of the same bond and upon bonds issued in exchange therefor or in place thereof. (e) As to the existence or non - existence of any fact or as to the sufficiency or validity of any instrument, paper or pro- ceeding, the Trustee shall be entitled to rely upon a certificate of the City signed by its Mayor and attested by the City Clerk as sufficient evidence of the facts therein contained and prior to the occurrence of a default of which it has been notified as provided in sub - section (g) of this Section, or of which by said sub- section it is deemed to have notice, and shall also be at liberty to accept a similar certificate to the effect that any particular dealing, trans- action or action is necessary or expedient, but may at its discretion, at the reasonable expense of the City, in every case secure such further evidence as it may think necessary or advisable but shall in no case be bound to secure the same. The Trustee may accept a certificate of the City Clerk of the City under its seal to the effect that a resolution or ordinance in the form therein set forth has been adopted by the City as conclusive evidence that such resolution or ordinance has been duly adopted, and is in full force and effect. (f) The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee and the Trustee shall be answerable only for its own negligence or willful default. (g) The Trustee shall not be required to take notice or be deemed to have notice of any default hereunder except failure by the City to make or cause to be made any of the payments to the Trustee required to be made by Article V (with the time limitation noted in (b) of Section 1001) unless the Trustee shall be speci- fically notified in writing of such default by the City or by the holders of at least ten per cent (107.) in aggregate principal amount of bonds outstanding hereunder and all notices or other instruments required by this Indenture to be delivered to the Trustee, must, in order to be effective, be delivered at the office of the Trustee, and in the absence of such notice so delivered, the Trustee may conclusively assume there is no default except as aforesaid. j o (h) The Trustee shall not be personally liable for any debts contracted or for damages to persons or to personal property injured or damaged, or for salaries or non - fulfillment of contracts during any period in which it may be in the possession of or managing the real and tangible personal property as in this Indenture provided. (i) At any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect any and all of the property herein conveyed, including all books, papers and records of the City pertaining to the Project and the bonds, and to take such memoranda from and in regard thereto as may be desired. (j) The Trustee shall not be required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises. (k) Notwithstanding anything elsewhere in this Indenture contained, the Trustee shall have the right, but shall not be re- quired, to demand, in respect of the authentication of any bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within the purview of this Indenture, any showings, cer- tificates, opinions, appraisals, or other information, or corporate action or evidence thereof, in addition to that by the terms hereof required as a condition of such action by the Trustee deemed desir- able for the purpose of establishing the right of the City to the authentication of any bonds, the withdrawal of any cash, the release of any property, or the taking of any other action by the Trustee. (1) Before taking such action hereunder, the Trustee may require that it be furnished an indemnity bond satisfactory to it for the reimbursement to it of all expenses to which it may be put and to protect it against all liability,except liability which is ad- judicated to have resulted from the negligence or willful default of the Trustee, by reason of any action so taken by the Trustee. Section 1102. The Trustee shall be entitled to payment and /or reimbursement for its reasonable fees for services rendered hereunder and all advances, cognsel.fees and other expenses reason- ably and necessarily made or incurred by the Trustee in and about the execution of the trusts created by this Indenture and in and about the exercise and performance by the Trustee of the powers and duties of the Trustee hereunder, and for all reasonable and necessary costs and expenses incurred in defending any liability in the premises of any character whatsoever (unless such liability is adjudicated to have resulted from the negligence or willful default of the Trustee). In this regard, the City has made provis- ion in the Jacuzzi Lease Agreement for the payment of said reason- able and necessary advances, fees, costs and expenses and reference is hereby made to said Jacuzzi Lease Agreement, including particul- arly Section 203(b) thereof, for the provisions so made. In this regard, it is understood that the City pledges no funds or revenues other than those provided for in said Jacuzzi Lease Agreement and the revenues derived from and the avails of the mortgaged property to the payment of any obligations of the City set forth in this Indenture, including the obligation set forth in this Section 1102, but nothing herein shall be construed as prohibiting the City from using any other funds and revenues for the payment of any of its obligations under this Trust Indenture. Upon default by the City, but only upon default, pursuant to the provisions of this Indenture pertaining to default, the Trustee shall have a first lien with right of payment prior to payment on account of principal or in- terest of any bond issued hereunder upon the mortgaged property for said reasonable and necessary advances, fees, costs and expenses incurred by the Trustee. Section 1103. If a default occurs of which the Trustee is by sub - section (g) of Section 1101 hereof required to take notice or if notice of default be given it as in said sub- section (g) provided, then the Trustee shall give written notice thereof by mail to the last known owners of all bonds outstanding hereunder shown by the list of bondholders required by the terms of Section 408 hereof to be kept at the office of the Trustee. Section 1_. In any judicial proceeding to which the City is a party and which in the opinion of the Trustee and its counsel has a substantial bearing on the interests of owners of bonds issued hereunder, the Trustee may intervene on behalf of bond- holders and shall do so if requested in writing by the owners of at least ten per cent (10x) of the aggregate principal amount of bonds outstanding hereunder. The rights and obligations of the Trustee under this Section are subject to the approval of the court having jurisdiction in the premises. Section 1105. Any corporation or association into which the Trustee may be converted or merged, or with which it may be con- solidated, or to which it may sell or transfer its trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consoli- dation or transfer to which it is a party, ipso facto, shall be and become successor trustee hereunder and vested with all of the title to the whole property or trust estate and all the trusts, powers, dis- cretions, immunities, privileges, and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Section 1106. The Trustee and any successor trustee may at any time resign from the trusts hereby created by giving thirty (30) days' written notice to the City, and such resignation shall take effect at the end of such thirty (30) days, or upon the earlier ap- pointment of a successor trustee by the bondholders or by the City. Such notice may be served personally or sent by registered mail. Section 1107. The Trustee may be removed at any time by an instrument or concurrent instruments in writing delivered to the Trustee and to the City, and signed by the owners of a majority in aggregate principal amount of bonds outstanding hereunder. Section 1108. In case the Trustee hereunder shall resign or be removed, or be dissolved, or shall be in course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or in case it shall be taken under the control of any public officer or officers, or of a receiver appointed by a court, a successor may be appointed by the owners of a majority in aggregate principal amount of bonds outstanding hereunder, by an instrument or concurrent in- struments in writing signed by such owners, or by their attorneys in fact, duly authorized; provided, nevertheless, that in case of such vacancy the City by an instrument executed and signed by its Mayor and attested by its City Clerk under-its seal, may appoint a tem- porary trustee to fill such vacancy until a successor trustee shall be appointed by the bondholders in the manner above provided; and any such temporary trustee so appointed by the City shall Immedi- ately and without further act be superseded by the trustee so appoint- ed by such bondholders. Every such temporary trustee so appointed by the City shall be a trust company or bank in good standing, hav- ing capital and surplus of not less than Three Million Dollars ($300009000), if there be such an institution willing, qualified and able to accept the trust upon reasonable or customary terms, ection 1109. Every successor trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the City an instrument in writing accepting such appointment hereunder, and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of its predecessor; but such predecessor shall, nevertheless, on the written request of the City, or of its successor trustee, execute and deliver an instrument transferring to such successor all the estates, properties, rights, powers and trusts of such predecessor hereunder; and-every predecessor trustee shall deliver all securities and moneys held by it as trustee hereunder to its successor. Should any instru- ment in writing from the City be required by any successor trustee for more fully and certainly vesting in such successor the estates, rights, powers and duties hereby vested or intended to be vested in the predecessor trustee, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the City. The resignation of any trustee and the instrument or instruments removing any trustee and appointing a successor hereunder, together with all other instruments provided for in this Article shall, at the expense of the City, be forthwith filed and /or recorded by the successor trustee in each recording office where the Indenture shall have been filed and /or recorded. Section 1110. In case the City shall fail seasonably to pay or to cause to be paid any tax, assessment or governmental or other charge upon any part of the property herein conveyed, to the extent, if any, that the City may be liable for same, the Trustee may pay such tax, assessment or governmental charge, without pre- judice, however, to any rights of the Trustee or the bondholders hereunder arising in consequence of such failure; and any amount at any time so paid under this Section shall be repaid by the City from the revenues derived from the mortgaged property upon demand, and shall become so much additional indebtedness secured by this Inden- ture, and the same shall be given a preference in payment over any of said bonds, and shall be paid out of the proceeds of revenues collected from the mortgaged property if not paid by the City; but the Trustee shall be under no obligation to make any such payment unless it shall have been requested to do so by the holders of at least ten per cent (10 %) of the aggregate principal amount of bonds outstanding hereunder and shall have been provided with adequate funds for the purpose of such payment. Section 1111. The resolutions, opinions, certificates and other instruments provided for in this Indenture may be accepted by the Trustee as conclusive evidence of the facts and conclusions 1 estates, rights, powers and duties hereby vested or intended to be vested in the predecessor trustee, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the City. The resignation of any trustee and the instrument or instruments removing any trustee and appointing a successor hereunder, together with all other instruments provided for in this Article shall, at the expense of the City, be forthwith filed and /or recorded by the successor trustee in each recording office where the Indenture shall have been filed and /or recorded. Section 1110. In case the City shall fail seasonably to pay or to cause to be paid any tax, assessment or governmental or other charge upon any part of the property herein conveyed, to the extent, if any, that the City may be liable for same, the Trustee may pay such tax, assessment or governmental charge, without pre- judice, however, to any rights of the Trustee or the bondholders hereunder arising in consequence of such failure; and any amount at any time so paid under this Section shall be repaid by the City from the revenues derived from the mortgaged property upon demand, and shall become so much additional indebtedness secured by this Inden- ture, and the same shall be given a preference in payment over any of said bonds, and shall be paid out of the proceeds of revenues collected from the mortgaged property if not paid by the City; but the Trustee shall be under no obligation to make any such payment unless it shall have been requested to do so by the holders of at least ten per cent (10 %) of the aggregate principal amount of bonds outstanding hereunder and shall have been provided with adequate funds for the purpose of such payment. Section 1111. The resolutions, opinions, certificates and other instruments provided for in this Indenture may be accepted by the Trustee as conclusive evidence of the facts and conclusions stated therein and shall be full warrant, protection and authority to the Trustee for the release of property and the withdrawal of cash hereunder. Section 1112. In the event of a change in the office of Trustee the old Trustee which has resigned or been removed shall cease to be Paying Agent and the successor Trustee shall become the Paying Agent. Section 1113. There shall be paid the standard and customary Paying Agent's fees and charges of the Paying Agent for handling the payment of the principal of and interest on the bonds and funds sufficient to pay the same shall be deposited with the Paying Agent prior to the dates on which payments are required to be made on principal and interest. t ARTICLE XII SUPPLEMENTAL INDENTURES ,Section 1201. The City and the Trustee may, from time to time and at any time, enter into such indentures supplemental hereto as shall not be inconsistent with the terms and provisions hereof (which supplemental indentures shall thereafter form a part hereof), (a) to cure any ambiguity or formal defect or omission in this Indenture or in any supplemental indenture, or (b) to grant to or confer upon the Trustee for the benefit of the bondholders any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the bondholders or the Trustee. At least thirty (30) days prior to the execution of any supplemental indenture for any of the purposes of this Section, the Trustee shall cause a notice of the proposed execution of such supple- mental indenture to be mailed, postage prepaid, to all registered owners and other bondholders whose names and addresses have been f11Qa with the Trustee. Such notice shall briefly set forth the nature of the proposed supplemental indenture and shall state that copies thereof are on file at the principal office of the Trustee for in- spection by all bondholders. A failure on the part of the Trustee to mail the notice required by this Section shall not affect the validity of such supplemental indenture. S�ec_t„ion 202. Subject to the terms and provisions contained in this Section, and not otherwise, the holders of not less than two - thirds (2/3) in aggregate principal amount of the bonds then out- standing shall have the rights, from time to time, anything contained in this Indenture to the contrary notwithstanding, to consent to and approve the execution by the City and the Trustee of such in- denture or indentures supplemental hereto as shall be deemed neces- sary and desirable by the City for the purpose of modifying, ppp -13 0 a altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any supplemental indenture; provided, however, that nothing herein con- tained shall permit, or be construed as permitting (a) an extension of the maturity of the principal of or the interest on any bond issued hereunder, or (b) a reduction in the principal amount of any bond or the rate of interest thereon, or (c) the creation of a lien upon the mortgaged property or a pledge of the revenues pledged to the bonds other than the lien and pledge created by this Indenture, except this sub - section (c) shall not be construed as prohibiting the creation of a lien upon'the mortgaged property and a pledge of said revenues in connection with bonds of the City to finance an 803 expansion referred to in Section 'R of this Indenture, it being understood, as therein provided, that any such lien and pledge shall be subordinate to the lien and pledge created by this Indenture, or (d) a privilege or priority of any bond or bonds over any other bond or bonds, or (e) a reduction in the aggregate principal amount of the bonds required for consent to such supplemental indenture. Nothing herein contained, however, shall be construed as making necessary the approval of bondholders of the execution of any sup- plemental indenture as provided in Section 1201 of this Article. If at any time the City shall request the Trustee to enter into any supplemental indenture for any of the purposes of this Sec- tion, the Trustee shall, at the expense of the City, cause notice of the proposed execution of such supplemental indenture to be pub- lished one time in a daily newspaper of general circulation published in the City of Little Rock, Arkansas. Such notice shall briefly set forth the nature of the proposed supplemental indenture and shall state that copies thereof are on file at the principal office of the Trustee for inspection by all bondholders. The Trustee shall a M r 96 a not, however, be subject to any liability to any bondholder by rea- son of its failure to publish such notice, and any such failure shall not affect the validity of such supplemental indenture when consented to and approved as provided in this Section. If the holders of not less than two- thirds (2/3) in aggregate principal amount of bonds outstanding at the time of the execution of any such supplemental indenture shall have consented to and approved the execution thereof as herein provided,no holder of any bond shall have any right to object to any of the terms of the provisions con- tained therein, or the operation thereof, or in any manner to question the propriety of the execution thereof, or to enjoin or restrain the Trustee or the City from executing the same or from taking any action pursuant to the provisions thereof. Upon the execution of any such supplemental Indenture, this Indenture shall be and be deemed to be modified and amended in accordance therewith. Section 1 203. Anything herein to the contrary notwith- standing, a supplemental indenture under this Article XII shall not become effective unless and until Jacuzzi shall have consented to the execution and delivery of such supplemental indenture. In this regard, the Trustee shall cause notice of the proposed execution and delivery of any such supplemental indenture together with a copy of the proposed supplemental indenture to be mailed by certi- fied or registered mail to Jacuzzi at least fifteen (15) days prior to the proposed date of execution and delivery of any such supple- mental indenture. Jacuzzi shall be deemed to have consented to the execution and delivery of any such supplemental indenture if the Trustee receives a letter signed by an authorized officer of Jacuzzi expressing said consent within fifteen (15) days after the mailing of notice and a copy of the proposed supplemental indenture to Jacuzzi, or if the Trustee does not receive a letter signed by an authorized officer on or before 4:00 o'clock p.m., C.S.T., of the 15th day after the mailing of said notice, Jacuzzi shall be deemed to have consented to the execution and delivery of such supplemental indenture. ARTICLE XIII AMENDMENT OF LEASE AGREEMENT Section 1301. The Trustee may from time to time, and at any time, but not prior to thirty (30) days after publication of the notice provided for in Section 1302 hereof, consent to any amendment, change or modification of the Jaeuzzl Lease Agreement for the purpose of curing any ambiguity or formal defect or omission or making any other change therein, which in the judgment of the Trustee is not to the prejudice of the Trustee or the holders of the bonds. The Trustee shall not consent to any other amendment, change or modification of the Jaeumai.-Lease Agreement without the prior approval or consent of the holders of not less than 66 2/3% in aggregate principal amount of the bonds at the time outstanding, evidenced in the manner provided in Section 1401 hereof. Section 1302. If at any time the City or Jacuzzi shall request the Trustee's consent to any proposed amendment, change or modification, the Trustee shall, at the expense of the request- ing party, cause notice of such proposed amendment, change or modification to be published one time in a newspaper of general circulation published in the City of Little Rock, Arkansas. Such notice shall briefly set forth the nature of such proposed amend- ment, change or modification and shall state that copies of the instrument embodying the same are on file in the principal office of the Trustee for inspection by any interested bondholder. The Trustee shall not, however, be subject to any liability to any bondholder by reason of its failure to publish such notice and any such failure shall not - affect the validity of such amendment, change or modification when consented to by the Trustee in the manner hereinabove provided. pO© -.2 3 €'4 ARTICLE XIV III S CELIANEOUS Section 1401. Any request, direction, objection or other instrument required by this Indenture to be signed and executed by the bondholders may be in any number of concurrent writings of simi- lar tenor and may be signed or executed by such bondholders in person or by agent appointed in writing. Proof of the execution of any such request, directions, objection or other instrument or of the writing appointing any such agent and of the ownership of bonds, if made in the following manner, shall be sufficient for any of the purposes of this Indenture, and shall be conclusive in favor of the Trustee with regard to any action taken by it under such request or other instru- ment, namely: (a) The fact and date of the execution by any person of any such writing may be proved by the certificate of any officer in any jurisdiction who by law has power to take acknowledgments within such jurisdiction that the person signing such writing acknowledged before him the execution thereof, or by an affidavit of any witness to such execution. (b) The fact of the holding by any person of bonds and /or coupons transferable by delivery and the amounts and numbers of such bonds, and the date of the holding of the same, may be proved 1py a certificate executed by any trust company, bank or bankers, wherever situated, stating that at the date thereof the party named therein did exhibit to an officer of such trust company or bank or to such banker, as the property of such party, the bonds and /or coupons therein mentioned if such certificate shall be deemed by the Trustee to be satisfactory. The Trustee may, in its discretion, require evidence that such bonds have been deposited with a bank, bankers or trust company, before taking any action based on such ownership. For all purposes of the Indenture and of the proceedings Gpp- .23 F - -t' for the enforcement thereof, such person shall be deemed to continue to be the holder of such bond until the Trustee shall have received notice in writing to the contrary. Section 1402. With the exception of rights herein ex- pressly conferred, nothing expressed or mentioned in or to be implied from this Indenture, or the bonds issued hereunder, is intended or shall be construed to give to any person or company other than the parties hereto, and the holders of the bonds and coupons secured by this Indenture, any legal or equitable right, remedy or claim under or in respect to this Indenture or any covenants, conditions and pro- visions herein contained; this Indenture and all of the covenants, conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the parties hereto and the holders of the bonds and coupons hereby secured as herein provided. Section 1403. if any provision of this Indenture shall be held or deemed to be or shall, in fact, be inoperative or unenforce- able as applied in any particular case in any jurisdiction or juris- diction or in all jurisdictions or in all cases because it conflicts with any provisions or any constitution or statute or rule of public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in question inoperative or un- enforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatever. The invalidity of any one or more phrases, sentences, claus- es or paragraphs in thip Indenture contained shall not affect the re- maining portions of this Indenture or any part thereof. Section 1404. It shall be sufficient service of any notice, request, complaint, demand or other paper on the City if the same shall be duly mailed to the City by registered addressed to the Mayor of the City, or to such may from time to time file with the Trustee. Section 1405. This Indenture may be in several counterparts, each of which shall bi of which shall constitute but one and the same or certified mail address as the City simultaneously executed e an original and all instrument. i IN WITNESS WHEREOF, the City of Little Rock, Arkansas has caused these presents to be signed in its name and behalf by its Mayor and its corporate seal to be hereunto affixed and attested by its City Clerk, and to evidence its acceptance of the trust hereby created, Union National Bank of Little Rock, Little Rock, Arkansas, has caused these presents to be signed in its name and behalf by its and its corporate seal to be hereunto affixed and attested by its , all as of the day and year first above written. CITY OF LITTLE ROCK, ARKANSAS By Mayor ATTEST: City Clerk (SEAL) UNION NATIONAL BANK OF LITTLE ROCK LITTLE ROCK, ARKANSAS By ATTEST: (SEAL) w • j � i IN WITNESS WHEREOF, the City of Little Rock, Arkansas has caused these presents to be signed in its name and behalf by its Mayor and its corporate seal to be hereunto affixed and attested by its City Clerk, and to evidence its acceptance of the trust hereby created, Union National Bank of Little Rock, Little Rock, Arkansas, has caused these presents to be signed in its name and behalf by its and its corporate seal to be hereunto affixed and attested by its , all as of the day and year first above written. CITY OF LITTLE ROCK, ARKANSAS By Mayor ATTEST: City Clerk (SEAL) UNION NATIONAL BANK OF LITTLE ROCK LITTLE ROCK, ARKANSAS By ATTEST: (SEAL) STATE OF ARKANSAS) COUNTY OF PULASKI) On this _day of , 1961, before me, a Notary Public duly co ®issioned, qualified and acting, within and for the State and County aforesaid, appeared in person the with- in named and _ I Mayor and City Clerk, respectively, of the City of Little Rock, Arkansas, a municipality of the State of Arkansas, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instrument for and in the name of said municipality, and further stated and acknowledged that they had signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMNY WHEREOF, I have hereunto set my hand and official seal this ,day of 9 1961. Notary Public My commission expires: A v STATE OF ARKANSAS) COUNTY OF PULASKI) On this _day of , 1961, before me, a Notary Public duly co ®issioned, qualified and acting, within and for the State and County aforesaid, appeared in person the with- in named and _ I Mayor and City Clerk, respectively, of the City of Little Rock, Arkansas, a municipality of the State of Arkansas, to me personally known, who stated that they were duly authorized in their respective capacities to execute the foregoing instrument for and in the name of said municipality, and further stated and acknowledged that they had signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMNY WHEREOF, I have hereunto set my hand and official seal this ,day of 9 1961. Notary Public My commission expires: ACKNOWLEDGMENT STATE OF ARKANSAS) ) COUNTY OF RnASKI) On this _ ___,day of 1%1, before me, a Notary Public duly commissioned, qualified and actUg witbin and for the State and County aforesaid, appeared in person the with" in named and , and , respectively, of Union National Bank of Little Rock, Little Rock, Arkansas, to me personally well known, who stated that they were duly authorized in their respective capacities to execute the fore- going instrument for and in the name and behalf of said Bank, and further stated and acknowledged that they had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this _day of , 1961. Notary Public My commission expires: Section 3. That the Mayor and City Clerk for and on behalf of the City be, and they are hereby, authorized and directed to do any and all things necessary to effect the execution of the Trust Indenture, its execution and acceptaAce by the Trustee, the,' performance of all obligations of the City under and pursuant to the Trust Indenture, the execution and delivery of the bonds and the performance of all other acts of whatever nature necessary to effect and carry out the authority conferred by this ordinance and by the Trust Indenture. The Mayor and City Clerk be, and they are hereby, further authorized and directed for and on behalf of the City to execute all papers, documents, certificates and other instruments that may be required for the carrying out of the authority conferred by this ordinance and the Trust Indenture, or to evidence that authority and its exercise. Section 4,. That the provisions of this ordinance are hereby declared to be separable and if any section, phrase or provision shall for any reason be declared to be invalid, such declaration shall not affect the validity of the remainder of the sections, phrases and provisions. Se_ cti�on„ 5. That all other ordinances, resolutions and parts thereof in conflict herewith are hereby repealed to the extent of such conflict. Section 6. That there is hereby found and declared to be an immediate need for the securing and developing of industry near the City of Little Rock, Arkansas in order to provide employment, alleviate unemployment and otherwise benefit the public health, safety and welfare, and the issuance of the bonds authorized hereby and the taking of the other action authorized herein are immediately necessary in connection with the securing and developing of a substantial industry. It is, therefore, declared that an emergency exists and this ordinance being . „ ; # l necessary for the immediate preservation of the public health, safety and welfare shall be in force and take effect immediately upon and after its passage. PASSED: October 2, , 1961. APPROVED: - Mayo ATTEST: City Clerk 000��3 r • f .i . „ ; # l necessary for the immediate preservation of the public health, safety and welfare shall be in force and take effect immediately upon and after its passage. PASSED: October 2, , 1961. APPROVED: - Mayo ATTEST: City Clerk 000��3